Helge M.Sønneland Secretary General Ministry of Cultural Affairs

COPYRIGHT AND PUBLIC LENDING RIGHT – SOLUTIONS IN THE NORDIC COUNTRIES Speaking notes and overhead files for the presentation at IFLA Jerusalem August 2000

My task is to present the solutions of the Nordic countries and to comment briefly on the link between and the Public Lending Right (PLR). PLR is the common name for the remuneration schemes to the benefit of authors for the lending of material in libraries. Such schemes are found in around 20 countries.

Copyright is important for libraries, and it forms the bottom line for most library activities, and can provide topics for many seminars. I therefore welcome that IFLA has shown such an interest in this field, by the group led by Marianne Scott.

(Foil 1) The content of copyright - moral rights – to be named author - right to oppose dishonourable use - economic rights

(Foil 2) The economic rights Exclusive right to authorise or prohibit - making of copies - making the work available to the public (i.e. to communicate, broadcast, perform outside the private circle)

The right of distribution (the right to control the spreading of tangible copies)

This right is expressed differently in different copyright legislation, and in some countries it does not exist.

Where it exists, this right may be restricted/exhausted in whole or in part following the first sale of the copy (i.e.), and may or may not include - exclusive lending right - exclusive rental right

(Foil 4) Legal solutions concerning exhaustion of the lending right differs.

Solution 1: Exhaustion for all/some rights concerning the control of spreading of copies, i.e. the lending right (This solution is permitted under international treaties.)

Where the lending right is exhausted for certain material, it means that libraries can lend it out without permission from the author, and without payment to the author – and it is in these cases where the Public Lending Right comes in: Should there anyway be a remuneration? The reasons for saying yes may be plentiful – and so may the answers to how and to who should remuneration be given.

Solution 2: The author has exclusive lending right Where this solution is chosen, the legislator most often has provided this right only in principle for some material, and provides for a legal license, allowing lending on the precondition that (an equitable) remuneration is paid .In these cases, where the remuneration is a right provided by the copyright law, the schemes are still named a Public Lending Right.Outside falls, strictly speaking, payment by libraries for use of material where authorisation is needed for such use.

It is important to note that the exhaustion of the lending right in many countries only covers the work on some tangible formats – i.e may be lent out, whereas lending of videos or CD- ROMs need authorization, or is put under a legal licence. Consequently, you may find mixed solutions – partly inside, partly outside copyright, like in the UK.

Note also; It is not sufficient to have a separate act on PLR in order to be able to declare the scheme outside of copyright and consequently outside the obligations of international copyright treaties that most countries are bound by. For the scheme to remain outside copyright, the PLR-scheme at least must not give anybody a legal right to receive remuneration. Legal experts hold different views on where the borderline goes.

(Foil 5) CONSEQUENSES OF THE COPYRIGHT CHOICE

Copyright models for PLR (cfr. , the and (partly) ) must include all rightholders (producers and authors) and successors in title throughout the term in which the work is protected – 70 years following the death of the author in Europe, 50 years in most countries, and must follow international treaty obligations (most important is the Berne Convention for the protection of literary and artistic works, and the agreement of the World Trade Organisation on intellectual property; the TRIP’s agreement) .

First and foremost is the obligation to apply the principle of “national treatment”.This means that - all works of authors from other countries party to the treaty must be treated on the same footing as the works of national authors - meaning again: foreign authors should be paid for library use of their works

(Foil 6 ) THE MODEL was decided in a directive on rental and lending in 1992.The substantial rights provided for in a directive must be implemented in the legislation of the EU member states,and also in Iceland, Norway and Liechtenstein – which are included in the European Economic Area by a special agreement between the EU and these three countries..In addition the directive will most likely bee implemented by all the countries applying for EU – membership like Hungary, Poland, Slovakia, The Tchech republic, Slovenia, the Baltic States Lithuania, Latvia and Estonia ; Bulgaria, Romania and Turkey).The directive provides for - exclusive lending right - possibility of derogation from the exclusive right provided that a PLR-scheme is in place, and that at least authors are remunerated, - Such a scheme can be based on cultural policy and not on copyright

The countries have a freedom of choice also concerning the scope of libraries to be covered by the scheme.

( Foil 7 ) PLR IN THE NORDIC COUNTRIES ( ,Finland,Iceland,Sweden and Norway)

It is this possibility of derogation of which the Nordic Countries have availed themselves.

Common features of the solutions found in these countries: - well established ( the Danish PLR-scheme was the first in the world) - The schemes are outside copyright – most (4) secured by separate legal acts - The remuneration is paid by the Government ( this of course is important with regard to the relationship with libraries, and for the support of the scheme by librarians ...) - the schemes forms an important part of the respective country’s cultural policies: the goal is to support and enhance national literature/languages/cultural/identity (compensating authors for the loss of the exclusive right has been left as the basic argument, but it still remains in the debate )

Within the EEA , the schemes may not discriminate authors on the ground of nationality. But all the Nordic countries have imposed as a criterium for eligibility that the book must have been first published in the national language of that country by an author who is active in the country. Phonograms are included in the schemes, but in different ways. Producers (publishers) are not paid (Foil 8 ) DENMARK (1946) 5 MILL INHABITANTS a very sophisticated scheme - Total amount: US$ 17.7 mill - not negotiated – the amount is decided by Parliament after proposal from the Government (Ministry of Cultural Affairs) - paid individually according to number of pages and copies of books by a given author, represented in stock of public and school libraries - decreasing scale of remuneration above US$ 36 000 .Max. payment US$ 65 000 - spouses/children under 18 of deceased authors included

(Foil 9 ) FINLAND (1961) 5 MILL INHABITANTS

Total amount: US$ 2.1 mill (10% of public and school library budgets ) Distributed as grants by the PLR board. 90% goes to fiction writers, 10 % to scientific writers no maximum.

(Foil 10) ICELAND (1972) POPULATION OF 250 000

- Total amount: 0.2 mill US$ - Not negotiated - Includes all types of libraries - 15% distributed as grants - 85% distributed individually according to lending of books (to 400 authors) - max US$350 - heirs are not paid

( Foil 11) NORWAY (1947) 4.5 MILL INHABITANTS

Total amount: US$ 6.1 mill - Negotiated with rightholders (1998-2001) – the total amount is decided by a sum pr. lending item (negotiated) multiplied by the number of lending units in stock first published in Norway,in Norwegian or sami language ( p.t. 15 cents pr. unit) - Includes all types of libraries - Distributed as grants through 12 funds operated by rightholders groups. - Max US$ 5500 pr grant ( scholarships/ travel grants. - All eligible authors whose works are represented in the library are treated equally. The division of the total sum between the funds is decided among the rightholders themselves, if need be by arbitration .85% is paid to to authors of literary works. - heirs are not paid

(Foil 11 ) SWEDEN 8 MILL INHABITANTS

Total amount: US$ 12 mill. - Negotiated with rightholders – the total amount defined by a sum pr. unit lent out by public and school libraries (11 cents pr. unit) - 38% distributed to individual authors according to the lending of their books in selected libraries with a specific sum pr. book, pt. 7.5 cents called Author’s coin - 1/3 to translators - Rest (“free money”) as grants – many long-term (5 years) and some lifetime grants - heirs are paid as long as the works is protected

(Foil 13 ) ANNUAL PLR-PAYMENTS IN SOME EUROPEAN COUNTRIES ( US $)

Mill Pr.capita

Denmark 17.7 3.54 US$ Sweden 12.0 1.50 Germany 10.9 0.16 Netherlands 9.4 0.63 7.1 0.14 Norway 6.1 1.39 Finland 2.1 0.42 Iceland 0.2 0.80

With the time constrains of the seminar, I have only been able to give you glimpses of the schemes. I also wish to underline that all the Nordic countries ( –and many other European countries-) are net importers of cultural goods, represents small linguistic markets where the protection and enhancement of national literature and language is regarded as essential.

We also see it as fair to the authors to compensate them for the use of their work in libraries.

The schemes seem to have provided basis for at good link between the author’s societies and the libraries and librarians.

There is currently no debate and pressure to convert the schemes to copyright, as all the parties are being well aware of the consequences – money would have to leave the country, or the government should have pay more in order to compensate the national authors – but I leave that debate aside.

If after this presentation you tend to think of copyright and public lending right as complicated, I can only agree .In trying to comprehend all details and developments it is often hard to keep one’s head above water in this field. But than again, it might comfort you to remember that a person, who has his head above water, only sees the tip of the iceberg.

Thank you for your attention.