[Opinion] Challenges with the implementation of mandatory “Exceptions and limitations” for digital lending on the example of Poland and Italy
The role played by libraries and archives, as by all the cultural institutions of the GLAM sector, is crucial and challenging, especially when considering their activities in the future, as highlighted during the engaging panels of the conference.
It became evident that the issues faced at the national level have universal significance, as many European countries encounter similar struggles in ensuring access to knowledge for education, research, and culture in the post-digital era through galleries, archives, libraries, and museums (GLAM).
In particular, the questions, doubts, and challenges faced in Poland, such as the implementation of the mandatory “Exceptions and Limitations” introduced by Articles 3 to 11 of the Copyright and Related Rights in the Digital Single Market Directive (2019/790/EU), and securing digital lending through the public mission of cultural heritage institutions, are similar to those in my country, Italy.
We encounter difficulties in applying lending rules to e-lending, recognising the fundamental and not-overridable secondary publishing rights of authors of scientific works, and ensuring them, at the same time, the right retention to prevent the transfer of all the rights in a publishing agreement. Additionally, we face the same need to overcome obstacles to the protection of the public domain imposed by other legislations beyond copyright law, which relates to the reproduction and reuse of the digital images of cultural heritage works in the public domain (in order to fully realise the mandatory principle stated by art. 14 of the CDSM Directive). In Italy, the Cultural Heritage Code (Legislative Decree no. 42 of 2004, Art. 108) subjects images (whether protected by copyright or not) to a form of “dominical” property with no time limit. This restricts the free reuse of digital images of public cultural heritage in the public domain for commercial purposes, with the provision of the necessary authorisation and the payment of a fee to the institution where the physical artwork is kept. Consequently, except for nonprofit uses, faithful reproductions of works of visual arts, which also fall under the definition of cultural heritage, remain subject to the “authorization+fee” system. A similar situation exists in Poland, as stated by the Law on the Protection of National Heritage.
We have observed the implementation of mandatory exceptions and limitations in favour of cultural heritage institutions. However, it represented a step forward from the optional ones outlined by the Copyright and Related Right in the Information Society Directive (2001/29/CE). Still, it has not achieved the desired result of harmonising the single digital market. This resonates with the experience in my country as well. Implementing these exceptions and limitations into national legislation has resulted in a fragmentation of the discipline at the European level.
Currently, Italian legislation does not allow for digital lending for digital publications. Licenses do not authorise Inter-Library Loans (ILL) for e-books and e-journals. The Italian copyright exception only permits digital copies for preservation purposes. In Poland and Italy, there is no explicit approach to the flexibility provided by open norms in copyright law.
What solution do we have? As the national coordinator of the KR21 project for Italy, I propose aligning the efforts of national coordinators to present uniform proposals on critical issues within the KR21 program, with the aim of amending national laws and achieving harmonisation at the European level. United and with coordinated proposals, we can strengthen our ability to achieve our goals.
Deborah De Angelis – Attorney at Law, Lead of the CC Italy Chapter, Knowledge Rights 21 national coordinator
"Libraries and archives of the future" conference
This opinion contains reflections on the topics discussed throughout the conference “Libraries and archives of the future. Copyright empowering public mission of culture”.
📺 Here you can watch the recording of the conference in Polish and English.
The conference was organised in May 2023 by Centrum Cyfrowe in cooperation with Future Law Lab (Jagiellonian University) and under the patronage of the Director of the Jagiellonian Library. The conference was funded by Knowledge Rights 21, supported by Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin.
Read other opinions about e-lending in European Union countries
Maja Drabczyk (Head of Policy and Advocacy, Member of the Board): Libraries and archives won’t be able to fulfil their public interest mission without tailored legal regulations.
Jurģis Īvāns (Copyright Expert, National Library of Latvia): There is a misconception that libraries and authors have conflicting interests. In reality authors and publishers benefit greatly from book lending and access to their works.
Ana Lazarova (Intellectual Property Expert, Digital Republic): Libraries deserve to be recognised as active participants in the copyright reform and, in particular, in the still ongoing debate on the CDSM Directive implementation.