2017 was a year of celebration for the European Un­ion. 60 years ago, on 25^th March 1957 the Treaties of Rome composed of the treaty establishing the European Economic Community, EEC Treaty, and the treaty establishing the European Atomic Energy Community, better known as Euratom, were signed in Rome (Italy). These treaties marked the will of the six founding members to strengthen their links and build a common future.

60 years later, the situation has changed considerably with 28 member-states, soon due to be 27. The Union has different remits and responsibilities, as well as a different way of functioning compared to the past.

Similarly, the evolving landscape of libraries has con­siderably changed too.

A major factor comes from the internet and more re­cently from the development of smart technology. For those of you born before the advent of smart tech­nology, can you even imagine what it was like to live, study or work at that time? Not only is it hard to remember what it was like, it is also hard to remember how we actually managed.

For a long time, librarians in different countries perceived the internet not as a new paradigm, but as new mate­rial to be treated equally to others that had preceded it, such as LP’s, cassettes, VHS, DVD’s, Blue-ray, etc. The changes brought about by the internet would be a new challenge to manage, just as those that went before. However, we are still today coming to terms with the es­sence of the changes. The fact that librarians eventually embraced all the opportunities offered by the internet (and smart technology) is now a large part of their work of promoting free access to information.

Since 1993, the reality of the free movement of people across borders within the EU resulting from the Maas­tricht Treaty was supplemented a few years later with the advent of an online borderless world. A new world opened up where each and everyone could navigate the sea of information freely without constraints other than the speed of the local broadband connectivity. Living in a borderless world turned into being an online and offline reality.

Yet the reality was not as promising as it seemed, and the myth is being debunked by an inconvenient truth of our dysfunctional and unharmonised legal frame­works affecting EU countries.

Since 1992 and the creation of the European Bureau of Library, Information and Documentation Associations (Eblida), libraries in Europe have been struggling to en­sure that the legal framework includes them, and that it doesn’t bypass their missions of providing unhindered access to information and knowledge for all.

In such a context, the particular nature of the relation­ship between copyright and libraries is an excellent example capturing the complexity of the dossier, and a very good reason why libraries need to lobby at Eu­ropean level.

European citizens are largely unaware of how the EU works. Therefore, we will start by explaining how law making is processed, especially through the three key EU institutions and the Lisbon Treaty.

The first institution to start with is the European Com­mission. This is considered the guardian of the Trea­ties and «has the monopoly on legislative initiative and important executive powers in policies».

Within its organisation, the Copyright Unit, having pre­viously been attached to the Directorate for Internal Market, is nowadays part of the Directorate on Communications, Content and Technologies (DG CONECT) notably in charge of the Digital Single Market. The Com­missioner Mariya Gabriel (Bulgaria) has recently been appointed as Commissioner for the Digital Economy and Society, replacing Günther Oettinger (Germany).

It is worth remembering here that the primary objec­tive of the European Union is to build a vast single market (also digital), that includes the free circulation of goods, services, people and capital. Therefore, the link between the Copyright Unit working for a great part on the question of the Digital Single Market to DG CONECT makes sense. How libraries are included in this area remains an open question.

The second institution is the European Parliament. Di­rectly elected by EU voters every 5 years, the Parlia­ment represents the interest of the citizens. It works through two main platforms: the work in Committee, to draft legislation, and the work in Plenary to pass legislation.

As explained on the Parliament website «the Parlia­ment numbers 20 committees and two subcommit­tees, each handling a particular policy area. The com­mittees examine proposals for legislation, and MEPs and political groups can put forward amendments or propose to reject a bill. These issues are also debated within the political groups».

Political groups are also of specific importance since they often adopt positions that all of their members are supposed to use. To date, the Parliament numbers 8 political groups from the whole political spectrum. The third key body, and the most secretive, is the Council of the European Union. It represents the in­terests of the Member-States in being the voice of EU member governments, adopting EU laws and coordi­nating EU policies. Its members are the Government ministers from each EU country, according to the policy area to be discussed, and each EU country holds the presidency on a 6-month rotating basis.

Other bodies with a consultative function exist: the Committee of the Regions (CoR) and the European Economic and Social Committee (EESC) for exam­ple. They sometimes produce interesting advice, but their opinions are not legally binding.

The EU institutions roles are included in the Consoli­dated version of the Treaty of the functioning of the European Union of 2012 that also defines EU com­petencies (i.e. jurisdictions) that are worth knowing.

Article 2.1 defines the exclusive competence that ex­ists for a specific area (see also article 3) where «only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the imple­mentation of Union acts». The EU has exclusive com­petence for example on customs unions, monetary policy for Member-States that use the euro, etc.

Article 2.2 defines shared competence that exists for a specific area (see also article 4) «when the Union and the Member States may legislate and adopt le­gally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence».

The shared competence works for example for the in­ternal market, the economic, social and territorial co­hesion, consumer protection, etc.

Article 2.5 defines a competence (in specific areas and under certain conditions) «to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas» as indicated in article 6. The result is that libraries are neither an exclusive competence of the European Union, nor a shared competence with member-states. They are part of the exclusive member-states (and local government) juris­dictions. There is therefore no library law at European level, but the absence of a law does not mean an ab­sence of rights.

Copyright exceptions and limitations «play an essen­tial role in enabling the delivery of library services to the public and in achieving the copyright system’s goals of encouraging creativity and learning».

They are essential for core library activities such as preservation, lending, or making copies of works.

In European Law, copyright is actually scattered over several directives, as shown in the non-exhaustive list below:

• Directive 96/9/EC of the European Parliament and of the Council of 11^th March 1996 on the legal protec­tion of databases;
• Directive 2001/29/EC of the European Parliament and of the Council of 22^th May 2001 on the harmo­nisation of certain aspects of copyright and related rights in the information society, also known as INFOSOC Directive;
• Directive 2006/115/EC of the European Parliament and of the Council of 12^th December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codi­fied version), originally from 1992;
• Directive 2012/28/EU of the European Parliament and of the Council of 25^th October 2012 on certain permitted uses of orphan works.

In 2015, in France, the French Publishers Association commissioned a pamphlet to the lawyer of «Charlie Hebdo», Richard Malka entitled 2015: the end of copyright? Taking for free is stealing. The author bla­tantly equated library to piracy in writing that «If, by virtue of such an exception [for e-lending], one could, as a library subscriber, gain access to e-books without any constraints in terms of duration of loan or number of simultaneous readers, why would anyone continue to buy e-books, or even printed books, for that matter? Legalizing piracy would achieve the same result». This lobbying pamphlet of poor quality content, ironi­cally distributed for free, disregarded the reality of li­brary practice, including online. It furthermore gave a misleading interpretation of the 2015 own initiative report on the implementation of Directive 2001/29/ EC written by the Legal Affairs Committee under Greens MEP rapporteur Julia Reda.

Broadly supported by librarians, the report included proposals such as the recognition of «the right for li­braries to lend e-books and give access to their col­lections», and was eventually voted by a large majority of 445 votes in favour from a total of 751 MEPs.

The growing noise that surrounded the report set the tone of the copyright reform to come with a lot of lob­bying activity in an area full of misinformation.

A few months later, on 9^th December 2015, the EU Commission Communication Towards a modern, more European copyright framework recognised the need to «adapt [...] exceptions to copyright rules to a digital and cross-border environment, focusing in par­ticular on those exceptions and limitations which are key for the functioning of the digital single market and the pursuit of public policy objectives (such as those in the area of education, research – including text and data mining – and access to knowledge».

In response to the Commission’s communication and in anticipation of future proposals on copyright, the li­brary and cultural heritage community published recommendations designed to update and strengthen justified exceptions and limitations to copyright in the digital age, and to prevent further fragmentation of the single market caused by contract terms and technological protection measures overriding exceptions and limitations offered by law.

On 14^th September 2016, after the European Com­mission published its Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, the library and cultural heritage community underlined the lack of ambition of the Commission’s proposal in their statement Only real reforms can bring EU Copyright rules up to date.

Since then, five Committees in the European Parlia­ment, namely the Legal affairs (JURI) Committee, that is the lead Committee, the Internal Market and Con­sumer Protection (IMCO) Committee, the Culture and Education (CULT) Committee, the Industry, Research and Energy (ITRE) Committee and the Civil Liberties, Justice and Home Affairs (LIBE) Committee issued or are in the process of issuing opinions.

Over two years ago, Eblida formed a Library and Cul­tural Heritage Coalition together with its partners IFLA, Liber, PL2020 and Europeana with a view to improv­ing advocacy for a progressive directive to ensure that libraries can effectively function and best serve their users in this, the 21^st digital century.

The impact of copyright reform was clearly presented in a briefing document displaying on one hand the nega­tive impact on libraries if the reform is restrictive and on the other hand the positive result for libraries and circulation of knowledge if positive reform is achieved. Dozens of meetings with Members of the European Parliament, representatives of National Governments in Brussels and in member states, as well as high par­ticipation in public events to raise awareness on the issues libraries are facing, were instrumental in putting the library on policy makers’ radars.

Since September 2017, we have been entering a cru­cial time in the Copyright reform discussion, with the upcoming compromise text to be discussed in the Legal Affairs Committee (JURI), the lead committee on the dossier. To follow-up closely on it, Eblida created a dedicated copyright reform webpage gathering information to improve understanding on the issue, raise awareness on the shared positions of library and cul­tural heritage institutions in Europe and to provide ways to set-up meetings with MEPs in the JURI Committee. The Library Coalition concentrates its effort on article 3 (Text and Data Mining), 4 (Illustration for Teaching), 5 (Preservation) and 7 to 9 (Out of commerce works). With this in mind, Eblida also encourages its members to reach out to their national governments who have a say and a strong influence in the debate. The release of several leaks in August and September 2017 com­ing both from the Estonian Presidency and from sev­eral member-states demonstrated the fierce lobbying activities that took place behind closed doors.

That copyright is a contentious issue is nothing new, but the added opposition from major tech and con­tent companies only further adds to current tension between member states.

The impact of the copyright reform proposals on li­braries in Europe cannot be predicted as long as the proposals are still under negotiation. Little progress made on some provisions (such as on Text and Data mining for instance) doesn’t equate to the number of counterproductive proposals (such as article 13 on upload filtering). Therefore, making all possible efforts to influence the debate in the most meaningful way is not only a requirement but a duty to try to achieve positive changes for the sector.

Yes, libraries are part of the copyright ecosystem not only in respecting the provisions contained in the law, but also in providing access to content to 100 mil­lion EU citizens a year. The 70,000 libraries across the Union form a physical and online public network providing legal access to knowledge and information. Sadly enough, European Directives on Copyright have tended to focus more on harmonising protections of­fered to rights holders than on the rights given to users of works, and therefore to libraries.

As such, the choice of whether to apply most ex­ceptions and limitations to copyright is left to the member-states. The result is an uneven patchwork across the EU, which is not only disadvantageous to users in countries with narrower exceptions and limitations, but also further complicates cross-bor­der cooperation.

With a progressive reform, libraries across Europe would benefit from a more harmonised set of excep­tions and limitations allowing them to better carry out their work in an increasingly cross-border and digital environment. However, and in view of latest develop­ments, this reform could also become a missed opportunity that would set Europe and its libraries back by preventing the free circulation of knowledge.

From a purely economic perspective, libraries mat­ter at European level with their annual acquisition expenditure representing nearly 5 billion euros a year. Furthermore, over the past years, several studies demonstrated that libraries provide valuable public services, which rather than being costly, are a profit­able investment, not only in economic terms but, more importantly, for the return on investment they gener­ate for society as a whole. Therefore, these studies demonstrate that financing libraries is not a burden to society, but an investment for the community.

Where other studies show that 30% of students in the EU were considered digitally competent in 2013, this poses the question of digital literacy. Therefore, to educate our citizens in digital literacy requires the recognition of the public interest mission of libraries through an updated legal framework.

In the copyright reform struggle, policy-makers are quite visibly split. However, this shouldn’t prevent the sector from continuing to advocate for change. In the long term, the role played by libraries in fostering eco­nomic, social and territorial cohesion, as well as their role in research, should be recognised as their real value. Perhaps then libraries could be considered as part of the shared competence of the EU (under article 2.4 of the Treaty).

But before this time comes, and before a library di­rective happens in Europe, we still have a long way to go. So, to ensure that the voice of the sector is heard, Eblida and its partners will continue to pull all our strength together on the copyright dossier and make use of it as a sounding board, to keep the library voice loud and clear.