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White paper – Helping knowledge and heritage institutions to fulfill their public interest objectives

The current EU rules allow these institutions to carry out preservation, indexing and similar copying operations (through a “preservation exception”), to allow for consultation of materials on their premises for research or private study (based on a “consultation exception”), and, in the case of public libraries, to make physical loans (allowed by a “public lending exception”).

The way in which the preservation exception is implemented varies greatly between Member States, and the applicable conditions, for example the types of works or the types of reproduction covered, diverge. This creates uncertainty among beneficiaries, and limits preservation activities. The consultation exception, requiring a person’s physical presence on the premises of the institution, does not take into account technological possibilities for remote access.

There is also uncertainty regarding what specific acts are covered, particularly those reproductions that may be in practice needed to allow for the consultation of a work online. Questions also remain on the interplay between the exception itself and purchase or licensing terms applicable to the work (the exception does not apply to works subject to those).

Finally, today e-lending by public libraries only occurs through licence agreements concluded with publishers, since the “public lending exception” only applies to physical copies. Libraries and their users have a strong expectation of equivalence between physical and digital formats; while right holders are equally concerned that seeking symmetry between the two poses a serious risk to the emerging e-book market.

The Commission could consider targeted and differentiated action in this area. To maximise the purpose of the preservation exception, it could consider clarifying that it applies to all types of preservation copying and to all types of works and other protected subject matter. Equally, updating the consultation exception could be considered, to allow specific categories of establishments to provide remote consultation to researchers and enrolled students under certain conditions (including access via secure networks, conditions of use or embargo periods) while preserving licence-based models. Further assessment of these conditions and of the possibility of making these exceptions mandatory and giving them cross-border effect in the EU is required. A legislative initiative on electronic lending seems on the contrary premature given the level of development of the e-book market and the piloting and roll-out of licencing solutions.