Libraries may have to police new copyright law

Proposed bill could create a huge amount of work for librarians, and it could also result in a real invasion of privacy, says lawyer

Librarians could end up becoming an unwilling copyright police force if proposed copyright laws are passed as they now stand, a lawyer warned last week.

Auckland solicitor Rae Nield says the bill requires librarians and archivists to obtain and keep written requests from those seeking a copy of a digital work for private study. The request must state “the purpose for which the material will be used”.

In addition, the librarian concerned must make a “declaration” in writing, stating that the provisions of the Act have been complied with. These declarations — according to another new clause (section 57A) — must be filed for three years and be available for inspection by the copyright owner of the original work.

Any such requests or declarations will presumably include the applicant’s name, says marketing lawyer and former librarian Nield, since the clauses stipulate that the material must be supplied to that applicant and no one else — and it must include reference to the material which has been requested, otherwise the librarian won’t be able to identify it for the copyright owner to inspect.

Not only does this create a huge amount of work for librarians, it could also result in a real invasion of privacy, she says. The provision potentially exposes the identity of everyone who has taken a copy at the library, and the reasons for which it was taken, to the author or publisher of a work. The applicant may wish to keep their motive for studying the material private, says Nield. Reasons for this could include matters of lawyer-client privilege — where legal cases are being researched — or confidentiality.

For example, a journalist, having written a controversial story, could see who has thought it worth lengthy study, and so be alerted to possible legal action, or find leads for further stories. Another potential side-effect envisaged by Nield is the stifling of business innovation. Ideas are not copyright, only their expression in documentary or artistic form, she points out. So, a business which saw a great idea in an article and sought a digital copy would leave a record of its interest in the library — available to the copyright owner of the original article.

There is also the concern that some copyright owners may decide to cash-in, by writing to people who have taken copies of their works demanding a fee, says Nield. Since private study is a permitted use, they would have no right to demand such a fee, but readers not acquainted with the law and wanting to avoid a fuss might well pay up.

The clauses are framed as though librarians cannot be trusted to deal with legal copying, says Nield. But they have been dealing with exactly that for years. The solution is obvious, she says: all that should be necessary is a “standard footer” on the material supplied, spelling out the conditions of its supply. Nield plans to make a “single issue submission” on this point to the select committee considering the Copyright (New Technologies and Performers’ Rights) Amendment Bill. The deadline for submissions has been extended to March 9, reflecting the huge amount of public interest in the bill, which includes a number of controversial provisions.

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