Use of books and press v. rights of authors and publishers:The Belgian situation in 5 capita selecta

Krakow, April 5-6, 2011

Kurt Van DammeManaging Director Librius (collecting society of the Flemish book publishers)President Reprobel (Belgian RRO for reprography & PLR)Head of Legal Unit & Foreign Policy Adviser Boek.be (Flemish booktrade umbrella organisation)

“No brilliance is needed in the law. Nothing but common sense, and relatively clean fingernails.”

John Mortimer

I. Libraries and the book sector: status quaestionis in Flanders

- Long standing exchange agreement with BIBNET (Flemish digital library): cover & summary (from Boekenbank, the Boek.be BiP) in exchange for metadata correction and enrichment

- The national library (KBR) is a partner in Arrow+ and has signedthe Arrow+ MoU

- Brand new MoU with Luisterpunt, the Flemish library for the visually impaired (digital content on support only) – follow-up of MoU with non-profit organisation Die’s-Lek-Ti-Kus for textbook materials (2009)

- Libraries have teamed up with heritage organisations & universities “to protect the copyright interests of end consumers” (de facto alliance)

- VEP, the Flemish E-Book Platform (PPS) – cf. following slides for detailed case study

VEP from up close

- VEP is an open standard platform for the secure storage & making available of all digital Flemish books - VEP is a back-end application allowing both commercial (publishers, booksellers,e-aggregators, e-boek.org, …) & non-commercial uses (libraries)

- Public-Private Partnership (PPS) – origins date back to July 2009- Flemish Government initiative via a brand new legal instrument: “Innovative Public Tendering”- Calls: out Q1 2011, first results to be expected towards end of year

- BIBNET and Boek.be co-invest 500,000 EUR in the set-up fase (4/5libraries, 1/5 Boek.be), IWT invests a further 400,000 EUR for R&D purposes- BIBNET and Boek.be will co-own basic infrastructure & software- Rightsholders retain full control over content and decide freelyon terms & conditions of making available their materials through VEP- Best-of-breed deal for all partners involved

- Flemish libraries’ annual purchases: €16M- Flemish annual book sales volume: € 500M (e-book share: 0,25%)

Long term

preservation

(OOS)

E-book formats

Normalisation

Secure storage

Transcoding

API’sFull Text Indexing

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VEP flowchart

Innovation platform

Innovation report

Pre-commercial call for tender

Lessons Learned

Production environment

Pre-commercial call for tender (IWT, 400K EUR)

classic call for tender if proven viable

R & D Laboratory

Classic (commercial) call

for tender (BIBNET/BOEK.BE, 500K

EUR)

Lessons Learned / Proof of Concept

R & D Laboratories(e.g. device-independent

reading, social DRM)

Production environmentVEP V1

Production environmentVEP V2

“Demonstrator” tool

VEP development path

VEP partners

- Within the VEP framework Boek.be & libraries will look into:

- digital lending- intra muros consultation on both library and bookstorepremises (all Flemish e-books, not only own collection)- extra muros consultation via snippet view- voluntary collective licensing agreements

- Within the Arrow+ framework Boek.be & libraries will look into:

- extended collective licensing for orphans- collective licensing (opt-out) for OoD

Boek.be is also the new ISTC-office for Flanders & The Netherlands. VEP, Arrow+ & ISTCare dealt with in an integrated way from the outset, to avoid overlaps & inconsistencies

“I take the view, and always have, that if you cannot say what you are going to say in twenty minutes you ought to go away and write a book about it.”

John Cuthbert Moore-Brabazon

II. Reprobel: the Belgian RRO Model

- Reprobel is the Belgian RRO for reprography and public lending- Reprobel was founded in 1994, some days before the adoption of the1994 Belgian Copyright Law (currently: 14 member CS) – de facto monopoly since ‘97

- Reprobel had an turnover of roughly 24M EUR in 2010 (of which 1.6M from public lending): reprography 56 % device levies, 44% operator levies- In 2010 Reprobel had an annual cost ratio of roughly 11.5%- Reprobel has a staff of 24 FTE (only 1.5 FTE for device levies)- Belgian reprography and public lending remuneration splitbetween authors & publishers is fixed by law: 50/50 for reprography, 70/30for PLR (primary distribution) – discussion re: transferability - Two Colleges (AC & PC), composed of relevant CS members, decideabout secondary distribution (categories and supports)- Tertiary distribution: CS to members (authors and publishers)

- Reprobel is mandate holder for Auvibel re: PLR (Auvibel part: 16.5%)- Private copy & Digital Education & Science Exception: P.M.- Current reprography tariffs under review (Eurimag & Agoria lobby)- Implementation of directive 2001/29 troublesome (Law 22 May 2005)

3. PLR in Belgium

- PLR introduced in Belgium in 2004, following an ECJ ruling (2003)- Reprobel is the central collecting society since 2005 (de facto monopoly)- First remunerations were paid in 2007, a good 13 years after the Directive’s deadline- Royal Decree based on fixed amounts per registrated library end user: €1 per adult, €0.5 per child, per annum- In 2010 the gross total Reprobel PLR remunerations amounted to appr. € 1.6M- Flemish and German Communities pay lump sum for their libraries: end userdoes not pay directly- French Community did so up until 2008, but since then Reprobelhas to collect directly for/in the libraries concerned (difficult – multiple registrations)- PLR scope: books, databases, photographs, sheet music, music & AV- Digital lending is out-of-scope- Idem for lending by non-recognized institutions or without educationalor cultural purposes; “false” lending (renting), software (lawsuit BEA re: games), fine art- Remun. exemption for in situ consultation and educational/scientific libraries - No window period (2 m.) for books- Several lawsuits pending (civil proceedings, Conseil d’Etat, EC, EHRC): VEWA

4. Use of book and press in public & private institutions: the Belgian legal framework

4.1. Private companies

° reprography: books & sheet music (short extract) v. articles/(photo)graphic --) “private use” includes in-company use --) operator and device levy --) L. 22 May 2005: sheet music excluded (not yet into force)

° no private copy exception, even if L. 22 May 2005 enters into force

° quotation right: soft law (cf. Librius/Reprocopy agreement)

° digital re-use of press clippings via CS (Reprocopy, Copiepresse) & Mediargus--) negotiations between Librius and Reprocopy pending: sector deal

° parody: rulings are strict but scarse & practice is different

4. Use of book and press in public & private institutions: the Belgian legal framework

4.2. Public instutions

° 7/8 exceptions for education and/or science- reprography (L. 22 May 2005: no exclusion of sheet music): non-profit- digital copy (1998) & secured intranet transmission (2005, includes AV)- free private performance in the framework of school activities (PPP)- free performance for examination review purposes- anthologies (author deceased) - library exceptions (1/2, see below)

° 2 exceptions for libraries, musea and archives:- digitization for conservation purposes- intra muros consultation (cf. VEP – soft law in the pipeline in Flanders)

° Handicap exception- Boek.be: MoU with NGO for dyslexic people (2009)

MoU with Luisterpunt (library for the blind) will be signed April 2011 (incl. dyslexia, afasia and MS)

5. Permissable private use under Belgian law- Reprography (see above): private use includes in-company use by private companiesand organisations (legal limitations + 3-step test) – operator levy for libraries, public institutions, education, private companies and copyshops – not title-specific - device levy on copiers, faxes, scanners and MFD’s (L. 2005: stand-alone printers in?; scanners out)

- Private copy: L. 22 May 2005 not yet into force--) will broaden scope (audiovisual, music + books & (photo)graphic)--) “New” Royal Decree of December 17th, 2009 is based on OLD version of 1994 Copyright Law (!) - lawsuit pending, filed by Nokia (Conseil d’Etat)--) 2009 Royal Decree increased number of devices & supports subjectedto levy substantially: USB, external hard drives, MP3/MP4, … - smartphones in but under review – e-readers out for now but under review (studies)--) once L. 22 May 2005 will have entered into force: remuneration forReprobel members / new college within AUVIBEL or mandate (cf. PLR)?--) influence of PADAWAN: administration and cabinet want to speed up things--) draft Royal Decrees (L. 2005 proof) have already been tabled at next MinisterialAdvisory Board meeting

- Reprography & private copy remunerations include illegal copies - “Private” use for educational & scientific purposes: see above- “Family circle” v. public communication: lots of media coverage (SABAM, SIMIM) &new tariff schemes (UNISONO, …)

Contact details

Kurt Van Damme

Huis van het BoekTe Boelaerlei 372140 Antwerp Belgium

T. + 32 (3) 287 66 95M. + 32 (473) 83 24 62E. kurt.vandamme@boek.be