The Digital Public Domain: Foundations for an Open Culture Page: 70
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70 The Digital Public Domain
by the fact that pursuant to article 1(2) of the Directive, which leaves the
provisions of earlier directives unaffected, the limitation of article 5(2)c) of
the Information Society Directive does not apply to databases.19 This may
create severe practical obstacles for the daily operations of libraries.
With respect to the making available of the digital archives, article
5(3)n) of the Directive states that Member States may adopt limitations
on the reproduction and the communication to the public rights for "use
by communication or making available, for the purpose of research or
private study, to individual members of the public by dedicated terminals
on the premises of establishments referred to in paragraph 2(c) of works
and other subject-matter not subject to purchase or licensing terms which
are contained in their collections". Not only is the implementation of this
provision, just like the previous one, not mandatory, but even where it has
been implemented, its scope remains extremely narrow: a work may only
be communicated or made available to individual members of the public if
each patron establishes that the use is for his exclusive research or private
study. The works may only be communicated or made available by means
of dedicated terminals on the premises of non-commercial establishments,
which excludes any access via an extranet or other protected network
connection that users can access at a distance. Moreover, this provision
only finds application insofar as no purchase or licensing terms provide
otherwise, which is in practice rarely the case. As the following remark
illustrates, this provision was met with much scepticism within the library
community:
While this is a laudable regulation, it is incomprehensible that this exception
is tied to "dedicated terminals on the premises" of named establishments
and to the condition that these works are not subject to purchase or licensing
terms. (...) The second condition is another example of the lack of balance
in the Infosoc Directive. By allowing rights holders to contractually evade
any exception, it grants them unlimited exclusive rights in the online realm.
This condition prevents public libraries from fulfilling their public task of
making published works available to their users without prejudice to their
ability to pay their market price.20
In countries that chose to implement it, article 5(3)n) was transposed
almost word-for-word in the national legislation. Several Member States
have, however, decided not to incorporate this article into their law; the
19 Commission Staff Working Paper on the Review of the EC legal Framework in the Field
of Copyright and Related Rights, SEC (2004) 995, Brussels, 19 July 2004, p. 13.
20 Privatkopie.net & Aktionsbuendnis Urheberrecht & FIfF, Response to Consultation on
Staff Working Paper 2004, p. 8.
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De Rosnay, Mélanie Dulong & De Martin, Juan Carlos. The Digital Public Domain: Foundations for an Open Culture, book, March 2012; Cambridge, United Kingdom. (https://digital.library.unt.edu/ark:/67531/metadc123530/m1/97/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; .