Cross-posted from the Mister Copyright blog.
In 2015, the European Commission unveiled a plan to “create a free and secure digital single market” that would expand and standardize the EU’s digital economy for the benefit of consumers. The strategy was named the Digital Single Market and one of its objectives is to modernize the EU copyright framework to fit the digital age. But while the plan includes the preservation of the rights of creators such as film producers and musicians, publishers of scientific and academic materials are subject to a notable carve out that stands to rob them of the rights in their works. It’s a peculiar exclusion that has provoked both authors and publishers to demand a proposal that will ensure they receive the same treatment as their fellow creators, and it’s critical that the European Commission respond to form a comprehensive policy that upholds the rights of all authors and copyright owners.
The Digital Single Market aims to break down regulatory barriers and unite 28 national markets into a single one that will enhance access to protected works by simplifying and speeding up the process for clearing rights. Though it sounds like a practical goal, the directive plans to do so through an expansion of exceptions to copyright that arbitrarily neglect the rights of some copyright owners. And while there may be a need to update copyright regulations in other industries, publishers and authors believe that the current legislative framework already strikes a sufficient balance that allows them to prosper while giving consumers a choice of works, accessible in a variety of ways at different prices.
In a response to the Digital Single Market regulations, the International Association for Scientific, Technical and Medical Publishers (STM) notes that Recital 33 of the Directive on Copyright in the Digital Single Market expressly excludes scientific, technical, and medical publishers from a publisher’s related right. The protection granted by virtue of a new publishers’ related right in Article 11 also does not extend to STM publishers, an oversight STM calls “disappointing, unwarranted and potentially discriminatory.” STM also points out that the vague language of the Directive on Copyright fails to adequately recognize scientific publishers as rightsholders.
The exclusion of these publishers represents a growing conviction that because scientific publications are used for educational and beneficial purposes, they should be subject to a broad fair use policy that allows for their distribution and reproduction free from copyright limitations. It’s a popular yet curious opinion that has been bolstered by digitalization projects like Google Books, which misappropriates the works of countless creators while claiming to build a resource that will benefit the public. But while the proliferation of educational texts is certainly a noble pursuit, the works should not be valued any less than other published materials and creative works that are afforded protections under the new directives.
As the UK Publishers Association makes clear in its position paper on the Digital Single Market, publishers are essential to the “curation, presentation and dissemination of research, knowledge and teaching materials” that ensures present and future generations can learn from and build upon existing works. Publisher developed tools already enable efficient and speedy access to educational materials, and copyright directives that do not provide clear protection for rightsowners could upset the production and availability of these works. The authors and publishers of scientific, technical, and medical texts invest years of research and writing – not to mention money – to produce their work, and depriving them of the right to control and realize a return on their investment could threaten the creation of future works.
The Publishers Association also maintains that while the Digital Single Market should apply to every European Union member, there is still a role for national markets with developed copyright mechanisms. Warning that not all aspects of a market can be homogenized, the Association affirms that different national cultures and languages treat copyright in specific ways, and that well-functioning licensing schemes which can operate across borders already exist. Essential in the development of a Digital Single Market is acknowledgement and respect for the national differences and cultural diversity that are the foundation of the success of the European Union.
The inclusion of well-defined publisher’s related rights in the Digital Single Market directives is crucial to the protection of the rights of academic authors and publishers and to the overall viability of the market for scholarly works. Publishing has embraced the development of new technologies and platforms and already represents one of the success stories of the digital age. Any modifications to the copyright mechanisms that have allowed scientific, technological, and medical scholarship to flourish must clearly guarantee the rights of all authors and publishers, because without them, the future of the European creative culture is at risk.