The Journal of Academic Librarianship 43 (2017) 184–192

Contents lists available at ScienceDirect

The Journal of Academic Librarianship

Academic Libraries and Copyright: Unveiling Inadequacies of Current

Law Through the Analysis of Processes Included in Quality
Management Systems
Juan-Carlos Fernández-Molina a,⁎, Margarita Pérez-Pulido b,1, José-Luis Herrera-Morillas b,1
a
Department of Information and Communication Studies, University of Granada, Spain
b
Department of Information and Communication Studies, University of Extremadura, Spain

a r t i c l e i n f o a b s t r a c t

Article history: Most information resources that make up university library collections are copyrighted works, which means that
Received 19 January 2017 conflicts between such rights and the activities of libraries are common. The development of the digital setting
Received in revised form 16 March 2017 has affected both sectors. On the one hand, it has led to changes in copyright legislation; on the other, it has af-
Accepted 28 March 2017
fected the services provided by libraries, as they adapt to the new needs of users and to the characteristics of dig-
Available online 5 April 2017
ital information. This paper aims to discover where the main points of collision between the two sides lie, and to
Keywords:
what extent they are adequately resolved by the present legislation governing copyright. To this end we use a list
Academic libraries of the main processes of academic libraries taken from quality manuals of a sample of Spanish university libraries.
Copyright law The results make manifest that the evolution of both sides is not yet balanced, and important maladjustments in-
Quality manual terfere with an adequate provision of services in academic libraries. Some are resolved through new legal pro-
Quality management system posals, but for many others there is no proper solution in sight.
© 2017 Elsevier Inc. All rights reserved.

INTRODUCTION Not only has digital technology radically transformed how intellec-
tual works are created and disseminated, it has also had a direct impact
Most information resources contained in the collections of academic on copyright law—in recent years it is being modified in the internation-
libraries are copyrighted, meaning that a good proportion of the every- al realm as well as in different national laws. In the international arena,
day activities they undertake comes into conflict with copyright laws. since ratification of the so-called ‘Internet treaty’ (WIPO, 1996), the ac-
The examples are numerous and varied. If one copies, photocopies, tivity of the World Intellectual Property Organization (WIPO) has been
scans or digitizes a work, the right of reproduction becomes an issue. considerable; especially relevant are the current proposals affecting
If a work is made available to the public, whether on the Internet or copyright exceptions and limitations, such as the Marrakesh Treaty
on an intranet, what comes into play is the right of communication to (WIPO, 2013a) for the blind and other people with disabilities, or pro-
the public. Problems may also arise regarding the norms for the protec- posals affecting the educational sector (WIPO, 2013b) or libraries
tion of “technological measures”, for instance if we wish to access the (WIPO, 2013c). Within the European Union, intense movement has
contents of a work protected by some DRM (digital rights management) also been underway, leading to a very recent proposal for a directive
system (Fernández-Molina, 2003; Ginsburg, 2005; Agnew, 2008; (European Commission, 2016) after a lengthy process opened for its
Iwahashi, 2011). In short, the traditional conflict between the interests study and deliberation (European Commission, 2013, 2014).
of libraries and their users and those of the copyright holders has been The new technological context has likewise affected the activities
amplified and complicated by digital developments (Dreier, 2001; and services provided by university libraries, which have had to adapt
Ferullo, 2004; Gasaway, 2010; Albitz, 2013; Charbonneau & Priehs, to new user needs and the characteristics of digital information. There
2014; Hansen, 2014). has been a variety of changes, from a greater implication in issues sur-
rounding scholarly communication, including the open access move-
ment and the management of research data, to the design of new
policies and strategies for collection development, or the intense collab-
⁎ Corresponding author at: Departamento de Información y Comunicación, Universidad oration in e-learning activities. The commonly shared idea is the library
de Granada, Colegio Máximo de Cartuja, 18071 Granada, Spain.
E-mail address: jcfernan@ugr.es (J.-C. Fernández-Molina).
is not simply a place where someone goes when they need to consult
1
Departamento de Información y Comunicación, Universidad de Extremadura, Plazuela materials, but rather an entity that comes into the life of the user to con-
Ibn Marwan 06071, Badajoz, España. tribute to making learning and research activities as productive and

http://dx.doi.org/10.1016/j.acalib.2017.03.006
0099-1333/© 2017 Elsevier Inc. All rights reserved.
 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192 185

successful as possible (Oakleaf, 2010; Dale, Beard, & Holland, 2011; that affect academic libraries under present copyright law, both in
Duke & Asher, 2012; Hernon & Matthews, 2013; Jaguszewski & Spain itself (Spain, 1996) and in Europe (European Union, 2001)—par-
Williams, 2013; Jaggers, 2014; Bell, Dempsey, & Fister, 2015; Bonn & ticularly, the exceptions in favor of libraries and other memory institu-
Furlough, 2015; Brown & Malenfant, 2016; Mackenzie & Martin, 2016). tions, illustration for teaching, and subsequently, their relationship
These changes in both sectors, copyright law and libraries, call for a with contracts and technological protection. In each case we begin by
redefinition of their relations. In the case of the WIPO, the analyzing the European Directive, and then look at the Spanish law, be-
aforementioned—and thus far fruitless—proposal of treaty was preced- cause all member states must follow what is established under Commu-
ed by several studies carried out by Kenneth Crews (2008, 2014, nity law.
2015). In countries including the United States (The Section 108 Study The exceptions in favor of libraries are based on the defense of public
Group, 2008), Australia (2013) or the United Kingdom (Gowers, 2006; interest, given their essential contribution toward the preservation and
Hargreaves, 2011) studies have also addressed the issue, being particu- diffusion of information for the benefit of society as a whole (Guibault,
larly relevant in the case of the UK, as the law was reformed (United 2003). Specifically, they are regulated in article 5.2.c of the European Di-
Kingdom, 2014) with very interesting results. Logically, in this overall rective in reference to the right of reproduction, and in 5.3.n with regard
process of analysis and the elaboration of new legislation, the represen- to communication to the public. The first of these permits specific acts of
tatives of the different sectors and professions involved are all trying to reproduction executed by libraries that are accessible to the public as
make reforms adequate for their interests. Organizations such as IFLA long as there is no intention of economic or commercial benefit, wheth-
(International Federation of Library Associations and Institutions), er direct or indirect. What is most noteworthy about this provision is
EBLIDA (European Bureau of Library Information and Documentation that it does not matter whether the libraries are public or private; the
Associations) or EIFL (Electronic Information for Libraries) are develop- important thing is that they are accesible to the public, and no payment
ing a vigorous activity of advocacy in all the related international forums is demanded for the copyright holders. Article 5.3.n is clearly the most
in defense of the interests of libraries, just as the national associations of relevant for the digital setting, as it refers to the right of communication
professional librarians do in the territorial realm of their respective to the public, that is, the party affected by the acts of digital transmission
countries. through internal or external networks. It allows acts of communication
In order to proceed adequately along these lines it is best to have to certain persons or making available the works that are contained in a
concrete data about which parts of the law should be modified or broad- library collection for the purposes of research or private study. But it es-
ened so as to face new challenges and demands caused by changes in tablishes two very important restrictions: the consultation of the work
the library sector. But it is no simple matter to pinpoint the specific can only be effected on dedicated terminals on the premises, which is
maladjustments between current copyright law and a proper function- absurdly restrictive in modern libraries, and it only applies to works
ing and lending of services. Often times one discovers certain not subject to purchase or licensing terms, which leaves its scarce utility
maladjustments in light of individual perceptions or concrete cases even more limited. It is remarkable that this exception, key for adapta-
that arise and are difficult to approach, or defy a broad and reliable per- tion of the law to the digital setting, fell so far short of the minimal re-
spective. Even professionals of great expertise have trouble getting a full quirements for effectiveness.
view of the situation, as their area of work or interest may engage a par- Well behind schedule, the Spanish law (Spain, 2006) was modified
tial viewpoint. to carry out transposition of the European Directive. The library excep-
Given this background of insufficient or inadequate methodological tions are regulated in article 37, which has three sections. The first, ded-
approaches for detecting the most problematic legislative points, we icated to the right of reproduction, was left practically unaltered, except
considered that one means of avoiding partiality would be to analyze for the introduction of a new purpose, preservation; previously only re-
the documents generated by quality management systems, and con- production for the purpose of research was allowed. The article is very
cretely the quality manual. It spells out the scope and objectives of the generic, and does not establish anything about the number of copies, if
system, a description of the processes with their procedures, and the in- they can be made for preventive reasons, etc. Its section 2, dedicated
teractions among processes (Balagué & Saarti, 2011). This stands as a to the right of distribution, was unchanged, as the directive of 2001
sufficiently complete document describing all aspects of university li- does not address its regulation. The most novel part is, no doubt, the
brary workings, objective enough to not be swayed by the subjective new section 3, dedicated to the right of communication to the public.
perceptions and opinions of each professional, and updated enough to The text is essentially identical to article 5.3.n of the directive, but unfor-
reflect present-day situations. tunately it adds some additional restrictions. On the one hand, it elimi-
The goal of this study, then, is to uncover the main points of conflict nates the purpose of private study, permitting only that of research; on
between copyright legislation and the adequate workings of academic the other hand, it includes the obligation of payment to the author, a de-
libraries, analyzing which shortcomings of the present laws impede a mand that does not appear in the directive.
totally satisfactory provision of services on the part of academic librar- Illustration for teaching is another of the copyright exceptions and
ies. As this study was developed in Spain it refers to Spanish legislation, limitations included in the directive, specifically in its article 5.3.a. It em-
which is however quite representative of European Union legislation in braces both the right of reproduction and that of communication to the
this area, largely because of the process of harmonization underway in public, as long as the works are used for purposes of illustration in scien-
recent years. By analyzing the documentation generated by quality tific works or teaching activities. It also requires that the use made be
management systems, the commonplace processes and usual activities justified by the non-commercial purpose to be achieved, and that the
developed by Spanish academic libraries can be outlined. From there, source be indicated (except when impossible). Unlike other exceptions,
the confrontation with Spanish copyright legislation is studied to deter- such as private copying, in this one a system of economic compensation
mine which laws come into play, which exceptions or limitations might is not required, which is coherent with European community legislation
be used to help one perform activities without infringing the law, and and the directive on databases (European Union, 1996), which contains
which tasks or services cannot be developed due to deficiencies in cur- a twin exception and does not demand payment. Although it is a very
rent legislation. habitual common exception in comparative law, it was not included in
the Spanish law, being first introduced in this 2006 reform. However,
its regulation was very defective: besides adding new restrictions not
SPANISH COPYRIGHT LAW AND THE LIBRARIES: AN OVERVIEW included in the directive, it was not applicable to online teaching, mak-
ing it almost entirely useless. It was again modified in the most recent
Firstly, however, to facilitate understanding and interpretation of the law reform (Spain, 2014) and now it does include both types of teach-
results obtained, it is advisable to succintly present the sections of law ing, face-to-face and online.
186 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192

The new wording of article 32.3 allows professors of formal educa- We found that all the university libraries have such a processes map and
tion (programs leading to official degrees) to reproduce and communi- that they are moreover always structured in the same manner, follow-
cate to the public ‘small fragments’ of works for educational purposes, ing a three-part typology: strategic processes, key processes, and sup-
except for textbooks, university handbooks and ‘assimilated publica- port processes.
tions’, this diffuse term being difficult to interpret. Furthermore, a sec- The strategic processes refer to aspects related with policy and deci-
tion 4 added to article 32 establishes that university staff or personnel sion-making, or general aspects of the library, such as quality per se or
at public research centers, not only professors, do not need authoriza- communication. The key processes, in turn, essentially have to do with
tion for the reproduction, distribution or making availaible to the public products, services and technical processes of the library, meaning they
larger fragments (journal article, book chapter, or length amounting to are largely similar overall, though not all follow the same structure
10%); yet in this case a right of payment is established, of an and sequence. Finally, the support processes refer mainly to manage-
irrenouncible character, for the rightholder. ment of human resources, technological ones, or economic ones.
Although, as mentioned earlier, the European Directive does not reg- To select the study sample, we examined the institutional web pages
ulate the right of distribution, a recent legal reform involving books and of the 76 university libraries that make up the Spanish Academic Librar-
libraries (Spain, 2007) has important implications for this right, as it in- ies Network (REBIUN), since all of them have adopted the same ap-
troduced a right to compensation favoring the rightholders for the pub- proach to quality management. However, only 26 of these webpages
lic loan of their works. University libraries are not affected, however, as made readily available most of the relevant information about processes
the exceptions apply to all teaching institutions integrated in the and procedures, and for the others it was necessary to arrive at this in-
country's educational system. formation through restricted intranet access. After studying the infor-
All these copyright exceptions and limitations are in turn limited by mation from the 26 websites, we finally chose for analysis a total of 11
the three-step test, included in the main international copyright academic libraries, the only ones that provided comprehensive informa-
treaties, in the European Directive (Art. 5.5) and in Spanish copyright tion about the procedures and had moreover developed processes of
law (Art. 40bis). In other words, any of these exceptions is only applica- considerable interest regarding digital information.
ble in special cases that neither conflict with the normal exploitation of After a thorough analysis of documentation from the libraries of
the work nor unreasonably prejudice the legitimate interest of the eleven universities (Universidad de Alcalá, Universidad de Cádiz,
author. Universidad Carlos III de Madrid, Universidad de Comillas, Universidad
Given its enormous impact on the use of copyright exceptions and de Córdoba, Universidad de Extremadura, Universidad de Granada,
limitations, mention must be made here of the regulation of technolog- Universidad de las Islas Baleares, Universidad de Jaén, Universidad
ical protection measures, which almost literally follows that established Politécnica de Valencia and Universidad de La Rioja), we confirmed
in article 6 of the 2001 directive. More exactly, articles 160 to 162 pro- that the processes described were very similar in all cases. For this rea-
hibit both individual circumvention of technological measures and ‘pre- son, once the processes had been located and analyzed, they were struc-
paratory activities’, that is, providing to others devices or services tured as general items that included the most representative
intended to circumvent the technological measures. Both the European component subprocesses, as can be seen in Fig. 1.
Directive and the Spanish law leave the relationship between techno- Having identified the processes in their different typologies, their
logical protection and enjoyment of copyright exceptions and limita- description was analyzed by means of flow diagrams or the graphic dis-
tions in the hands of hypothetical agreements between rightholders play of the process, interrelations with other processes, the register or
and users of very unlikely practical efficacy. Moreover, when works sub- description of the characteristics of the process, and, when applicable,
ject to licensing terms are involved, which would be the practical total- the procedure. In this way we hoped to arrive at more specific informa-
ity of digital works, what is established in the license prevails over any tion, able to convey a complementary idea about the conflict analyzed.
copyright exception or limitation. With regard to this point, we should From this point of departure, a legal and applied analysis was carried
make it clear that Spansih law does not follow the commendable exam- out, attempting to detect the main points of collision or the inadequa-
ple of Portugal, Belgium or the UK, where copyright exceptions have a cies of current copyright law to solve them satisfactorily.
mandatory character, and therefore cannot be nullified by means of a
contract. RESULTS AND DISCUSSION

METHODOLOGY Analysis of the results obtained was done following the division into
three procedural categories (strategic, key and support) mentioned in
Initiatives for quality management set in motion in recent years by the previous section. We shall begin with the key processes, as most
nearly all university libraries allow us to explore in detail the general- of the problems covered lie in this realm, closely related with services
ized mode of function by looking closely at a description of the process- to users. The other two categories, more concerned with internal man-
es and procedures involved. In Spain, the quality management systems agement, are addressed further below. In each case we analyze which
adopted by university libraries are based either on ISO Standard author rights come into play, which problems might arise, and what op-
9000:2000, EFQM model, or the National Agency for Quality Assessment tions or legal possibilities the university libraries have at hand.
and Accreditation (ANECA). All three models apply a management
strategy known as the process-based approach. It is based on the iden- KEY PROCESSES
tification and sequencing of processes and their interrelation (repre-
sented in graphic form in a processes map), their descripton and These processes, which make up the bulk of the documentation of
graphic display in a flow diagram, and the additional documentation, al- quality management systems, were subdivided into three groups, cen-
together conforming what is designated as procedures. This is gathered tered on collection management, information access and use, and rela-
up in the quality manual, for which reason it is a key element of any tions with users. We look at each below.
quality system.
In this study we proceeded to identify, sequence, and describe pro- PROCESSES RELATED WITH COLLECTION MANAGEMENT
cesses in view of the analysis of information about quality management The first of these processes revolves around document selection, ac-
appearing in the different institutional webs of Spanish university li- quisition and delivery. It constitutes a macro-process divided into sub-
braries. To this end we first analyzed the documentation provided by processes to manage the selection and the incorporation into the collec-
the quality manuals and the “processes map”, representing the process- tion of materials through purchase, donation or exchange, both of
es underlying the system of quality management of a particular library. printed resources and electronic ones. The points of conflict lie in the
 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192 187

Fig. 1. Processes and subprocesses of Spanish academic libraries.

selection and acquisition of information resources, in the collection of in this case the university, has some right over such works. However,
academic works (PhD and Master Theses, undergraduate theses), and the student alone is the rightholder, of moral and economic rights, re-
in the creation of teaching contents to be uploaded onto teaching garding these academic papers (Casas, 2012), so that they can only be
platforms. reproduced or made publicly availiable with his or her authorization.
Regarding acquisition, a clear distinction must be drawn between At the same time, academic papers are often under Creative Commons
analog and digital publications. In the former case, copies of works be- licenses, so one must make note of the option chosen. These licenses
come the property of the library, which means they can be used with arose with the intention to return power to the author and facilitate
ample freedom by users, who should respect the rights of reproduction, the choice of more or less restrictive conditions governing use of the
distribution and transformation, but the library may benefit from the work (Lessig, 2004; Kapitzke, 2009). It is therefore crucial to know
limitations to copyright established in sections 1 (reproductions for pur- what type of license was chosen—merely respecting the right of attribu-
poses of research and conservation) and 2 (lending of works) of the ar- tion is not the same as prohibiting use in commercial contexts,
ticle 37 of Spanish copyright law. Digital publications, on the other hand, prohibiting derivative works, or having to respect the conditions of
are not acquired as property; they may only be used in accordance with the initial license in successive works.
what is established in the corresponding license, whether they be At this point we run into one of the cornerstones of conflict at pres-
journals, e-books or databases. Therefore, the copyright exceptions ent: digitization of the works of a collection. In certain cases it proves
and limitations take second place in relevance, as the terms and condi- very useful for the university library to digitize some of its printed ma-
tions established in each license determine what exactly may be done terials to make them availiable to users in digital format by means of
with each of these publications (Guibault, 2002; Eschenfelder, 2008; their intranet. Here two rights come into play, that of reproduction, to
Guibault, 2009; Davies, 2013; Fischman Afori, 2013). obtain a digital copy, and that of communication to the public, to
Gathering up academic works and integrating them in digital repos- make it available to users. The first of these would be possible for the
itories is one of the most significant activities taken up by university li- purposes of research and preservation, which could be evoked in this
braries in recent years. Regardless of their academic level, everything case, though grey areas surround, for instance, how many works
from the modest undergraduate theses to the PhD dissertation stands might be digitized, and what number of copies. Regarding the right of
as an intellectual work whose copyright corresponds exclusively to communication to the public, the exception established in art. 37.3 ap-
the author, in this case a student. Yet some norms addressing this aspect pears difficult to apply. For one, it is only possible for research purposes,
and meant to foster open access to scientific publications have actually not for private study, making it questionable if all the uses and users of a
caused confusion, leading to the erroneous belief that the institution, university library come under that designation. Furthermore, it also
188 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192

states that it can only be applied to works not subject to purchase or li- teaching resources included in a repository, and the scientific output
censing terms, leading to questions in the event that the work is offered available in open access. The institutional information is made available,
by the publisher in a digital format. This key matter is largely resolved fundamentally, through the corresponding web page, teaching plat-
by a recent decision by the Court of Justice of the European Union form, digital repository, and the social networks.
(2014a), who established that libraries may digitize the works Regarding the web page, a university library should be aware of who
contained in their collections if such is necessary to make them available holds the copyright of its component parts (text, images, sound…),
to their users through specialized terminals; and that works are not con- since it is very unlikely that all the material is original. In other words,
sidered to be governed by a license just because the publisher offers a even if the page as a collective work belongs to the library, some of
license, only when the pertinent license has actually been signed. the contents probably have other owners, whose rights must be
Some obvious limitations are also established, such as the fact that it is respected. Furthermore, one must bear in mind the links to other
not possible to digitize the entire collection of a library, as this would vi- works, which takes us to the recent decision of the Court of Justice of
olate the three-step test (only ‘special cases’) and that the number of the European Union (2014b) to clarify their legal status after years of
copies made available at electronic reading points must not exceed doubts. It specifies that the provision on a website of clickable links to
the number of physical copies held by the library. works freely available on another website does not constitute an act of
The traditional collaboration between the library and the professor communication to the public; hence, this does not require the authori-
to make teaching materials available to the student has meanwhile zation of the rightholders. However, the situation is just the opposite
been transferred to the halls of online teaching, presenting even more (calling for authorization) if the links are directed to a “new public”
complex legal problems. Indeed, recent court decisions have forced sev- not taken into account by the rightholders at the moment of authorizing
eral Spanish universities to compensate copyright holders for economic the initial communication—for example, if the access was only allowed
damage caused through the illicit reproduction and public availability of by means of a payment platform or by means of controls of access. The
teaching materials on online platforms. The situation was further com- same can be said about information distributed over social networks.
plicated after the 2014 reform of Spanish copyright law, allowing repro- The rights that come into play and the questions one must consider
duction and public communication of “small fragments” of works for in the case of online teaching platforms and digital repositories have al-
teaching purposes, excepting textbooks, handbooks and “assimilated ready been discussed.
publications”. The latter term gives rise to a string of questions about
their content, as the law defines it vaguely as any work published PROCESSES RELATED WITH INFORMATION ACCESS AND USE
with the intention of being used as a resource or material for the faculty This section covers five processes, the first of them pertaining to ac-
or student body of regular education in order to facilitate the process of cess to electronic documents. The user is provided with the online con-
teaching or learning. An ample interpretation of this definition would sultation of electronic books and journals, and with reference and full
nullify a good part of the efficacy of this disposition, as the university text databases. The process implies locating a document, consulting it
teaching does not only involve handbooks, but also monographs or on the screen and downloading it. The rights that come into play are
journals. those of reproduction and communication to the public. Also to be
Even broader is the scope of application of the following section of taken into account are the technological measures that control access
article 32, permitting the reproduction, distribution or making available to and use of works, along with the legal norms that protect them. At
to the public fragments somewhat larger (journal paper, book chapter, any rate, as the documents are in digital format, what really matters
or proportion of up to 10%). However, in this case, there is an are the corresponding licenses establishing the use that may be made
irrenounceable right to receive payment for the rightholder. We must of such documents.
stress that a good part of the information resources acquired by univer- Here we run into another problem that has not yet been resolved by
sities is under license (which means that the clauses in each one deter- current legislation: text and data mining activities. Researchers need to
mine whether they may be used in digital learning platforms, and under derive the greatest yield possible from the contents of databases used by
what specific conditions). It is difficult to fathom that university libraries the university, for which reason there should be no obstacles in carrying
are paying huge amounts of money for the licensing agreements of their out such activities inherent to the advancement of science. Neverthe-
electronic resources and that they moreover must pay a substantial less, the databases often have technological protection that impedes
amount to the copyright collecting society for that very same permitted such activities, and as a consequence of the recent law protecting
use, not for a use unallowed by the license. Likewise puzzling is the fact DRM systems, the obstacles cannot be circumvented without breaking
that it is an irrenounceable right, hence practically annihilating the good the law. Similarly, the licenses that regulate their usage on occasion ex-
will of many authors who would gladly permit certain uses of their pressly prohibit the development of text and data mining activities. Un-
works, e.g. diffused by means of CC licenses. fortunately, the exceptions for research activities included in the
The second of the processes, closely interrelated with the above one, database protection directive (European Union, 1996)—later included
is focused on information resources management and entails several in the national legislation of the member countries—have become obso-
subprocesses related with cataloging and making available works to lete, totally insufficient for facing the needs of today's researchers in
users. It includes internal database management and the incorporation their text and data mining activities. The aforementioned proposed di-
of library resources to them, including documents in repositories, either rective (European Commission, 2016) tackles this problem precisely
institutional or disciplinary ones. To this end it is necessary to have the with results that deserve a positive overall appraisal. Unlike most of
authorization of the rightholder, as the reproduction of the work and its the exceptions of the directive of 2001, this one has a mandatory char-
availability to the public on an open network are implied. acter, obligating all member states to include it and guarantee its har-
Finally, the third of these processes is dedicated to the management monization. It affects copyright as well as the ‘sui generis’ database
of institutional production, that is, overseeing the creation of institu- right, permitting in both cases the activities of text and data mining
tional information and its distribution by means of content platforms, for the purpose of scientific research. It should also be noted that it es-
for application in the realm of teaching or research. As part of this pro- tablishes the nullification of any contractual clause that attempts to in-
cess we have the delineation of publishing needs and the contents of validate this exception, something absolutely essential if one wishes to
the platforms, to establish policies for their publication, while identify- avoid licenses making it worthless. The only aspect that has attracted
ing and managing the providers of contents, encouraging and adapting criticism is that beneficiary institutions are strictly limited to “non-prof-
norms of intellectual property and data protection, as well as providing it research organizations” or those pursuing a public interest, which in
guidelines for training courses and marketing campaigns. Therefore, the the opinion of several international organizations in the library sector
process controls all the information offered in the institutional web, the only serves to prolong the uncertainties for researchers and ignores
 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192 189

the basic principle that facts and data should not be copyrighted (IFLA, doors of hope for an eventual solution. It spells out that the lending
2016). right enshrined in the rental and lending rights Directive (European
Also related with the processes of access to electronic documents we Union, 2006) includes the making available to the public electronic
have a flagrant deficiency of current legislation: online access to the dig- books by libraries for a limited period of time, so that the user can down-
ital collections of libraries. Both the Directive of 2001 (Art. 5.3.n) and load the work in his/her own computer, but it would only be available
Spanish law (Art. 37.3) contain an exception that permits the online for that user during the time of lending, after which the work could
availability of works from their collection for the purpose of research not be used by that person.
or private study. Notwithstanding, the efficacy of this exception is great- Likewise poorly or only partly resolved are the problems stemming
ly diminished by the aforementioned restrictions requiring works not from the use of plagiarism software, increasingly extended in universi-
be subject to purchase or licensing terms and the activities be carried ties. There are several options, but the best known is Turnitin, which de-
out only on dedicated terminals on the premises of libraries. mands a copy of students´ work for verification, and later archives in the
In the following process, document supply to other institutions, we database for posterior comparisons with other works. The key matter at
encounter the usual dichotomy between documents in intangible digi- stake is the reproduction of a work whose copyright corresponds to the
tal format, regulated by the corresponding license, and works in tangi- student, and should only be copied with their consent. In 2007 several
ble format (paper, CD, DVD…), the latter involving not only the right US students filed a lawsuit against iParadigms, the Company owning
of reproduction but also the right of distribution, with the exceptions Turnitin, alleging copyright infringement. The court threw out the
mentioned earlier (Art. 37.1 and 37.2). The same occurs with the follow- case, essentially on the basis that such reproductions count as fair use,
ing process, interlibrary loan. It should be noted here that the licenses as they were made in an educational setting and Turnitin does not use
usually include the specific conditions under which a loan may be the works to make a true publication available to other persons. Howev-
made, establishing for instance that it must be effected by means of er, this court decision was the subject of much debate, and a good num-
safe systems (such as Ariel) that eliminate the copy once it has been de- ber of experts have criticized it, considering that copyright infringement
livered to the final user, and it is even frequent for them to prohibit de- is in fact produced (Horovitz, 2008; Herrington, 2010; Sharon, 2012). If
livery if the user is a foreign institution, thereby interfering with the this constitutes a grey matter for US law, which has the flexibility of fair
across-border circulation of documents for research and private study, use, it is even fuzzier in the context of Spanish law, which only has a
which can hardly be tolerated in the reaches of the European Union. closed list of exceptions under quite strict conditions. It is hard enough
The fourth process to be addressed is designated as facilities and to justify reproduction without author consentment to examine the
equipment, and it includes aspects as varied as the loan of scanners originality of a work, but especially when it becomes a permanent
and laptops, e-books, special devices for the handicapped, and programs part of an archive or database that allows for later comparative analyses.
for detecting plagiarism. Here we come up against a number of hot In sum, it could be useful to include a new exception allowing the data-
topics in recent years, some of which have been satisfactorily resolved, bases of plagiarism systems used by academic institutions to incorpo-
while others remain at bay. Adequately resolved ¡s the case of devices rate reproductions of the works of students without their authorization.
for and access to information for persons with a discapacity, as the The fifth and final process, support for scholarly communication, is
2006 reform broadened the previous exception considerably. Before it founded on the creation and maintenance of digital repositories of pub-
only included one exception to the right of reproduction, and exclusive- lications such as journal papers or conference proceedings. Also includ-
ly for the blind, whereas now the new article 31bis includes the rights of ed is the design of materials to aid in the evaluation of research activity
reproduction, distribution and communication to the public and for per- and for its dissemination to the university community. As we men-
sons with any type of discapacity. tioned in a previous section, the storage and availability of works in a
Contrariwise, the loan of e-books involves one of the greatest prob- digital repository affects the rights of reproduction and communication
lems at present in terms of trying to find a balanced solution between to the public. Therefore, it can only be done if we have the authorization
the rights of libraries and those of rightholders. These problems are of the rightholders. Regarding journal papers, it would be necessary to
very complex ones, entailing multiple factors of a legal, technical and analyze, case by case, their situations: if the rights were transferred to
economic nature, giving rise to confusion and frustration not only for li- the publisher, the conditions under which they were transferred, the
braries and their users, but also for authors and publishers (IFLA, 2014). period of embargo, etc. When a journal is acquired by means of a license,
If we focus in on the legal questions, we find that the circulation in li- it would be necessary to check the specific conditions put forth.
braries of intellectual works in physical format (book, CD, DVD…) is le-
gally considered as distribution, so that, according to art. 37.2, the
rightholder cannot oppose library lending, and the university libraries
are exempt from making payment to the rightholders. In the case of e- PROCESSES RELATED WITH USERS
books we do not have tangible copies, so that the right of distribution Two different processes make up this section: user training and dy-
is irrelevant, but communication to the public is indeed involved, and namic information. The former revolves around one of the classic ser-
it is not subjected to these exceptions. Still, from a practical standpoint vices of university libraries and is developed both online and face-to-
there are no differences: in both cases the work is accessible for the face. Either way, formative activities imply the creation of teaching ma-
user during a limited period of time and with no direct or indirect com- terials that will use the work of others, whose rights must be respected.
mercial benefit at stake. Therefore, the use of e-books is only possible For this activity, the library cannot take advantage of what is established
along the lines established in the corresponding license, which has a in article 37, as it only includes the purposes of research and preserva-
huge impact on libraries, as they sacrifice autonomy in their acquisitions tion. It cannot benefit from the limitation of illustration for teaching of
policy. Further, many licenses include abusive clauses, making the lend- article 32.3 either, as this only includes professors of formal educations.
ing of e-books unfeasible for many libraries. Given this situation, a fierce But it can indeed take advantage of the exception in section 4 of the
campaign led by EBLIDA (2012, 2013) arose in favor of an adequate e- same article (which we looked at above), since in this case all the uni-
book policy for libraries and a “right to e-read”. At first two solutions versity staff is included.
were foreseen: one, to promote standard licenses that were more fair The second process surrounds the communication of information of
and would find a better balance between the interests of rightholders all types and in a dynamic form. On the one hand, it embraces mainte-
and users; on the other, a legal modification that would establish an ad- nance of the system of news, recent events and web; on the other
equate limitation of the right of communication to the public (Dusollier, hand, the responses to communication received: requests for informa-
2014). A recent judgment of the Court of Justice of the European Union tion, complaints, suggestions, requests for services. In this case one
(2016) does just this, coming to clarify a few matters and opening the must take care that information is disseminated in a way that respects
190 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192

the copyright of a work. When information rights belong to third and are being amended—in part at least—through the new European Di-
parties, links are most appropriate, although the precautions mentioned rective. Other points of conflict remain unaddressed, despite the urgent
earlier will necessarily apply. need for a balanced resolution.
Among the points adequately addressed and soon to be resolved we
STRATEGIC PROCESSES find text and data mining activities, since the directive proposed goes in
the right direction, establishing a mandatory exemption whose content
The processes more habitually included are those related to quality is quite balanced. Still, there are objections as to the fact that it should
management systems, strategic planning, and library projection, as not be restricted merely to research undertaken by public or private re-
well as relations with society, new technological developments, and search organizations dedicated to the public interest.
digital support services for research. A good number of the quality man- Partial and clearly insufficient is the solution for the processes of dig-
uals selected include the obligation of establishing policies related with itization presented in the proposed directive of 2016. In the first place, it
knowledge and management of copyright, to promote familiarity with only affects the right to reproduction, and exclusively when intended
it and disseminate copyright knowledge for the benefit of all the groups for preservation. Digitized copies cannot therefore be consulted online,
involved (users, providers, librarians, other institutions, and administra- nor in terminals situated on the premises of the library itself, nor re-
tion). In this sense they follow the lead of REBIUN (2011), which, in its motely. This exception should have been more ambitious, taking in
third strategic plan, includes a strategic line recommending the provi- the purposes of private study as well as the right of communication to
sion of information or advisory services regarding intellectual property. the public, to permit that the works could be consulted by further
All these processes of planning and managing quality are developed in users. Insufficient for similar reasons is the proposal related with “out-
light of the definition of their mission, their vision and their values, of-commerce works”, based exclusively on the use of licenses, which
among which the respect of copyright is often evoked. in recent times is proving to be inefficient and even detrimental for
the widespread diffusion of intellectual works.
SUPPORT PROCESSES Ignored to date is the problem of e-lending, a crucial point not even
attended to in the proposed directive. There is still hope that the recent
This final type of process is centered on matters of management, not decision in the Case C 174/15 between Dutch Public Libraries Associa-
tion and Public Lending Right Foundation will be a landmark for the de-
only of economic resources, but also of human or technological re-
sources. The first, denominated management per se, is concerned with velopment of a legal framework permitting users to borrow books from
libraries under suitable conditions regardless of their format.
copyright for publication, the elaboration of annual reports and statis-
tics, i.e. to appear on the institutional web, and so forth. As always, Along these lines, we detect problems related with the use of plagia-
rism software, fully overlooked by the proposals and barely mentioned
when dealing with the production and dissemination of information,
in debates in this arena. Though we might all agree on the need to act
in print or electronically, one must be careful of works copyrighted by
against plagiarism in the academic world, this endeavor should not
a third party, aside from bearing in mind that creations resulting from
imply a disregard for the legitimate copyright of students.
such activities will have a copyright of their own.
Likewise on ice for the time being is the generalized drawback that
The second of the subprocesses, communication and dissemination
technological protection—via DRM systems—and contractual
of information, refers to that of an internal character (e-mail, acts of
protection—via licenses—undermine an adequate enjoyment of copy-
meetings, intranet, blogs, RSS, whatsapp, telephone, videoconfer-
right exceptions and limitations. One footprint in the right direction
ence…), as well as external ones (institutional web, blogs, e-mail, sms,
left by the directive proposal is that the new exceptions included cannot
electronic screens, pamphlets, guides of services, RRSS, events, year-
be nullified by contracts; yet its impact is excessively limited, as it does
books…). The rights affected and the precautions to be taken coincide
not apply to the rest of exceptions and limitations. One could have taken
with those of the above process.
advantage of this occasion to include in the directive proposal a rule cor-
Finally, staff training is the last of these subprocesses, and embraces
all the activities that the library develops in order to improve and up- responding to the rest of the exceptions, or at least for those considered
more relevant, which was the path taken by the United Kingdom in its
date the formation of personnel. The development of formative activity
thus demands consideration that teaching materials elaborated must cited modification of the copyright law. In the case of protection of tech-
nological measures, no novel contribution is made, as it refers back to
respect the copyright of any material pertaining to others. Again, the li-
brary finds that it cannot benefit from article 37, which specifies only what was established in art. 6.4. of the directive of 2001.
These insufficiencies reflect a deeper dilemma: the framework of
the purposes of research and preservation, nor the purpose of teaching
(Art. 32.3), but it can benefit from the exception included in Article 32.4. copyright exceptions and limitations established in the directive of
2001 is not adequate for coping with the demands of the present day
Can this be resolved with the new exception in favor of teaching includ-
ed in the directive proposal? The answer is no; it is only applicable to digital society. It has not harmoniously dealt with the national legisla-
tion of the member countries (closed list, not mandatory), nor has it
‘educational establishment's pupils or students and teaching staff’, and
is furthermore very weakened by the fact that section 2 of article 4 per- served to truly adapt legislation to the digital setting. Its substantial re-
strictions later became even stricter under certain national legislations
mits licensing schemes to take precedence over the exception.
(Guibault, 2010). Given the practical impossibility of adapting the law
gradually, at the same pace as social and technological development,
the most appropriate solution would be to dispose of a more open and
CONCLUSIONS flexible framework, either taking maximum advantage of the options
permitted under current community legislation (Senftleben, 2010;
University libraries have evolved at a fast pace in recent years, incor- Hugenholtz & Senftleben, 2011; Cook, 2012); or else introducing an
porating new services to adapt to the changing needs of their users. open-ended exception similar to the US fair use, yet suited to the Euro-
Meanwhile, digital developments have myriad implications for copy- pean judicial system (Griffiths, 2010; Decherney, 2014; Halpern &
right, giving rise to challenging issues that had not been faced in the Johnson, 2014).
past. Some conflicts can be dealt with reasonably under current legisla-
tion; for others there is no adequate solution in sight. Hence, a good ACKNOWLEDGMENT
number of the services presently provided by university libraries entail
some risk of infringement of copyright laws. A number of This study was supported by the Spanish Ministry of Economy and
maladjustments between user rights and copyright have been detected Competition (Project DER2014-53012-C2-2-R).
 J.-C. Fernández-Molina et al. / The Journal of Academic Librarianship 43 (2017) 184–192 191

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