Universities See “Disastrous Effects” For Education, Science In German Copyright Reform

By Monika Ermert for Intellectual Property Watch

A German scientist who would like to read an online book owned by another department of his university soon may have to travel to the department and read it on site instead if a proposed copyright law is passed.

“I will not be able to just use our highly sophisticated university network to read that publication,” said Rainer Kuhlen, professor of information science at the University of Constance and member of the German UNESCO Commission [UN Educational, Scientific and Cultural Organization]. “Instead, if the draft German copyright law is enacted, I have to leave my office, drive there and do it on the spot, possibly only to see that I even cannot print out a copy.”

Effects like this have brought together Kuhlen and 260 research institutes, universities and academic institutions in Germany into a campaign against a second round of reform of German copyright law currently under debate by German legislators. Global attention has been paid recently to efforts in France to implement the European Union copyright directive, but Germany also is finding the implementation process complicated.

Kuhlen and the Coalition for Action: Copyright for Education and Research founded in 2004 on 28 March sent out urgent action letters to German members of Parliament, warning of the “disastrous effects” of what seems to be the final draft presented by Justice Minister Brigitte Zypries last week. “Parliament is our last hope,” says Kuhlen.

“To the general public, the continued ban on making copies of the CD you bought if it’s DRM [digital rights management] protected and the final ‘no’ to a de minimus rule in prosecution is of more interest,” says Kuhlen. “But the potential effect in research and education really is a catastrophe.”

Taken out, for example, would be paragraph 52.a of the law introduced 2003, which allowed schools and universities to make copyrighted material available in class over a school intranet or server with copyright royalties paid on a flat rate basis to the collecting societies. This would be banned in the future, according to the current draft.

“Critique on this special point is understandable,” acknowledged a spokesperson for Zypries, who nevertheless defended the reform as “balanced.” The so-called “second basket” – as the current follow up to the 2003 implementation of the European Union copyright directive has been named – was “freestyle after the short programme that we had to do quickly after the EU directive came out,” he said. It was “not ideal, but you cannot get an ideal solution in this area,” he said, repeating a recent message of Zypries. “If everybody is complaining, we found the right balance,” said Kuhlen. “It is cynical.”

And not completely true. At least the German technology hardware industry and its association BITKOM applauded a planned cap on copyright levies that should not rise over 5 percent of the sales price of the respective scanner, personal computer or photocopier. The levies are distributed by the collecting societies to authors, musicians or actors, a system that BITKOM thinks is obsolete in a world of individual DRM-supported pricing of all media content. If individual pricing were introduced, there would no longer be need for a collecting society system and each author or rights holder could manage his intellectual property, they argue.

Publishers Also Concerned

German publishers, meanwhile, also cite serious deficiencies in the draft law. The possible on-the-spot reading of published documents in libraries has to be kept under control, they argue. Paragraph 52.b would allow libraries, museums and archives to make available copyrighted material, “without even buying them.” The change in the draft law actually would allow a library to make one book available to several users at the same time – even if they only paid for one – and to use the copies that authors and publishers are obliged to file with certain central libraries. Alexander Skipsis, CEO of the “Boersenverein des Deutschen Buchhandels” criticised the draft law as a “declaration of bankruptcy.”

“Publishers shouldn’t be expropriated for the sole benefit of public research,” says Pascal Oberndoerfer, lawyer at the Institute of Copyright and Media Law in Munich. “But there is a legitimate interest of researchers to use a book they bought via their intranet.”

Researchers also would be impacted by the ban of Subito, the digital document delivery service that made digital copies available to researchers by email. If a publisher has a similar, but high-priced service, Subito needs a contract with the publisher or has to use fax or regular mail for the delivery. “This is a step back for us,” say the CEO of Subito, Traute Braun-Gorgon.

Copyright expert Oberndoerfer said it was unusual that considering the recent changes in the draft the ministry said users also got their share in the balance. He noted that from the end users’ position it did not look good that even for filesharers who only shared two or three songs, prison terms of up to two years were in theory possible.

“What also has been underestimated, in my opinion, is the possible effect that the coupling of three new laws will have: the tightened copyright law, the new obligation for Internet service providers to disclose customer data to private parties for investigation – a consequence from the new EU copyright enforcement directive and the data retention laws following the data retention directive,” said Oberndoerfer. “We get more than the sum of its parts.” The two new directives still have to be implemented in EU member states.

Looking at the copyright law, some EU member states found more balanced ways for implementation say Kuhlen and Braun-Gorgon. Countries like Austria differentiate, for example, for digital delivery between commercial and non-commercial (scientific) customers. In the United Kingdom, according to Kuhlen, a researcher gets access to everything in his national library without even paying royalties. The coalition, he said, will try to network with EU neighbours on the copyright issues. A declaration of solidarity has just been sent to the French colleagues who also are in danger, as Kuhlen put it, of losing their exemptions from copyright through the new French copyright law.