By Jean Richard, Expert (Switzerland)
[Omissis]
DRAFT GUIDELINES ON LEGISLATIVE AND POLICY MEASURES CONCERNING BOOK
DEVELOPMENT AND ELECTRONIC PUBLISHING
These Guidelines recognise the function that book and electronic
publishing play as a vector of freedom of expression, free access to information,
education, culture, democracy and human rights within society. Furthermore, they take into
account the essential role that they play in the promotion of cultural and linguistic
diversity and of pluralistic expression. These Guidelines assume that only the
implementation of culture oriented policies can guarantee these core values in the book
and electronic publishing fields.
National cultural policies have sustained book publishing through the
elaboration and implementation of proven book regulatory and policy frameworks. The basic
principle underlying these Guidelines is that such policies should be extended and adapted
to emerging and evolving electronic publishing. These Guidelines therefore recognise the
development of a new access economy in the electronic publishing chain as a result of the
convergence of cultural media industries due to the digital paradigm implemented by the
evolving information and communication technologies. Furthermore, these Guidelines stress
the complementary characteristics of the traditional book economy and the new access
economy in electronic publishing.
These Guidelines address two core issues: firstly, the changing status
and role of books and of their actors (authors, publishers, booksellers, distributors and
libraries) within the evolving publishing chain and within society; and secondly, the
regional inequalities and cultural disparities which hinder access to the whole publishing
chain. Such core issues can only be addressed by the implementation of culture oriented
book and electronic publishing policies in the following strategic areas: freedom of
expression and free access to information; intellectual property and user rights, and
enforcement mechanisms; international standards, definitions and obligations; fiscal
dispositions and market regulatory measures; national promotional policies in traditional
book publishing and in the new access economy.
I. Definitions
For the purpose of the present Guidelines the definitions contained in
the Appendix to this document apply:
II. Freedom of expression and free access to information
1. Books and electronic media are fundamental vectors of freedom of
expression, culture, democracy and human rights.
- No censorship laws should be promulgated or any content evaluation for political,
ideological, religious or moral reasons be applied by public authorities.
- Cultural and linguistic diversity should be promoted and sustained in books and
electronic publications.
- Material, data or content should not be excluded or access to networks be denied on
other grounds than the law in force in a particular country.
- The protection of privacy and personal data on networks should be ensured by codes of
conduct, legal dispositions and international multilateral agreements.
- The distribution of illegal and harmful categories of material should be determined and
denied on the grounds of the law in force.
2. Free access to information and the free circulation of information and related
products should be promoted and recognised as fundamental human and democratic rights.
i. The Florence Agreement (1950) and its Protocol, the Protocol of Nairobi
(1976), instituting and guaranteeing the free and unrestricted flow of books, cultural,
educational and scientific categories of material and products, should be ratified and
implemented by all member States.
ii. The development of regional inequalities and disparities in the book
and electronic publishing fields should be monitored and addressed by appropriate European
policies, measures and projects.
iii. All actors active within the evolving book and culture oriented
electronic publishing field should be considered as cultural agents.
iv. Policies should encourage a dense, diversified, qualitatively and
quantitatively supplied network of points of access to books and culture oriented
electronic products and services.
v. The competencies of all actors, providers and users within the
evolving book and electronic publishing field should be promoted so as to empower them to
gain free and unrestricted access to information.
vi. Information providers should not knowingly permit access to
categories of material on Internet and networks that are illegal within the jurisdiction
where they are accessed. Concerning other categories of material, users are free to
determine what information they wish to access.
vii. Legal provisions should establish regulations against monopoly,
dominant position protection and unfair competition within the book and electronic
publishing field.
viii. Legal provisions on competition should not hinder the possibility of
regulatory and fiscal measures and agreements within the book and culture oriented
electronic publishing economy.
III. Intellectual property/user rights/enforcement mechanisms
3. National intellectual property and copyright laws concerning book and electronic
publishing should be harmonised and adapted with regard to both international treaties and
conventions, multilateral agreements and European Union directives.
a. The harmonisation process of intellectual property and copyright laws
concerning book and electronic publishing should be elaborated in collaboration and
consultation with all parties concerned: public authorities, international organisations,
public and private sectors and professional associations.
b. Intellectual property and copyright laws, agreements and treaties, both
national and international, should evolve taking into account the new digital paradigm
giving rise, alongside the book economy, to the new access economy (electronic publishing)
and taking into account a balanced and fair view of the interests of all parties
concerned.
c. The following intellectual property and copyright areas concerning book and
electronic publishing should be adapted and modified when necessary within national laws
along the lines of international treaties, conventions, multilateral agreements and
European Union directives:
- intellectual property and copyright ownership;
- moral rights;
- patrimonial rights concerning all the exploitation rights such as divulgation,
destination, distribution, representation and reproduction rights;
- term of copyright;
- authors’ and publishers’ secondary and related rights;
- "fair use" or limitations to copyright for private use;
- licensing agreements and codes of conduct and of practice;
- "sui generis" database rights;
- author-publisher contracts or charters;
- publisher's rights and interests in relation to the investment of finance and expertise
in developing electronic media, network services and digital databases;
- translator's rights.
4. Access user rights and obligations within the public and private sectors
should be taken into account in the book and new access economy.
i. Users should be informed of their rights and obligations (intellectual
property, copyright, etc.) through codes of conduct in relation to the use of, and access
to, books and electronic publications.
ii. Self-regulatory ethical measures should be provided to users in
relation to the proper use of, and access to, electronic publications on Internet and
networks.
5. Enforcement mechanisms and measures and sanctions for infringements should be
legally provided so as to guarantee copyright, the protection of freedom of expression and
free access to information.
- Enforcement mechanisms and measures should be implemented through international
treaties, conventions and multilateral agreements.
- Legal provisions should be elaborated concerning the rights and liabilities of access
and information providers on Internet and networks.
- The creation of organisations for the collective administration of copyright and related
rights within the book and electronic publishing field should be legally provided.
- Professional service and information providers should promote self-regulatory measures
and proper uses on Internet and networks through the elaboration and adoption of codes of
conduct.
- The creation of supervisory institutions concerning Internet and networks should be
explored, experimented and administered only by professional service and information
providers, with the support of public authorities.
- Legal dispositions should provide for sanctions and their enforcement for copyright
infringements in the book and electronic publishing fields.
- Legal dispositions against the circumvention of enforcement measures and mechanisms for
copyright infringements in the book and electronic publishing fields should be elaborated.
IV. International standards, definitions and obligations
6. Book and electronic publishers and producers should implement international
and national standards, definitions and obligations concerning books and electronic
publications.
i. The definition of books and culture oriented electronic publications should be
provided in national legislation and through international treaties, conventions and
multilateral agreements in conformity to the spirit of the Florence Agreement (1950) whose
aim is to facilitate "the exchange of publications, objects of artistic and
scientific interest and other materials of information" for educational, scientific
and cultural purposes.
ii. The development and standardisation of international metadata mechanisms and
identifiers should be implemented so as to enable :
- The identification of books and electronic publications (eg. ISBN, ISSN, DOI);
- The implementation of Electronic Data Interchange (EDI);
- The implementation of voluntary filtering mechanisms and measures on Internet and
electronic networks;
- Electronic commercial transactions and collection of fiscal taxes;
iii. The development and standardisation of electronic publication formats should
be elaborated through the international collaboration of professionals.
iv. Legal provisions, accredited security processes and electronic
signatures for electronic commercial and economic transactions should be implemented.
v. Provisions for legal deposits should be elaborated both for books and
for culture oriented electronic publications on a balanced basis through collaboration
between producers/publishers and libraries in conformity with copyright provisions.
V. Fiscal dispositions and market regulatory measures
7. Fiscal legal dispositions and market regulatory measures should be
implemented through national policies, and European policies, so as to sustain the
economic viability of the book and culture oriented electronic publishing chain.
8. The monitoring and assessment of fiscal and market regulatory measures and
policies should be implemented through an economic observatory concerning the book and
electronic publishing or new access economy.
9. Fiscal dispositions
- Fiscal legal dispositions should be adapted following the harmonisation process
implemented by European Union fiscal directives so as to address the issues of market
distortion and unfair competition.
- VAT fiscal dispositions should be uniformly applied to products within the book and
electronic publishing chain.
- National policies should implement 0% or reduced VAT rate to books and culture oriented
electronic publications.
- When possible, cultural, educational and public institutions belonging to the
informational infrastructure of a country should be liable to VAT deduction.
- O % VAT rate, or at least, reduced VAT rate should apply on electronic access services
for cultural, educational and public institutions belonging to the informational
infrastructure of a country and on their network interconnections.
10. Market regulatory measures
- Market regulatory measures (such as retail price maintenance) related to books and
culture oriented electronic publications should be elaborated within the European Union
harmonisation process so as to address the issues of market distortion, unfair
competition, and cross-border commercial transactions.
- Market regulatory measures (such as retail price maintenance, discount, book clubs,
remaindering, etc.) related to books and culture oriented electronic publications should
be clearly defined within national cultural policies and implemented through either
professional agreements or national legislation.
- Preferential tariffs for postal charges should be implemented for the distribution of
books and off-line culture oriented electronic works.
VI. National promotional policies in traditional book publishing and
in the new access economy
11. National promotional policies should be elaborated within the framework
of a Book and New Access Economy Law or Internet Law, which should cover both traditional
book development and electronic publishing.
12. National promotional policies and measures should be elaborated in
conjunction with all partners concerned through the institution of a consultative body
such as a National Book and Information Centre.
13. National promotional policies and measures should sustain new developments
due to technological innovations in the book and electronic publishing fields such as the
creation of national cultural web sites and networks; web sites and networks of cultural
information providers such as libraries, publishers, booksellers and print-on- demand
services.
14. National promotional policies should implement a wide variety of measures and
aids in favour of the book and electronic publishing chain:
i. Indirect and structural measures (e.g. fiscal and regulatory measures, see
IV.) which apply to the level of the whole book and electronic publishing industry, and
incentive (e.g. financial loans or guarantees) and direct (eg. subsidies) measures and
aids which apply to the level of enterprises, cultural actors and cultural products,
either on a selective or an automatic basis.
ii. Taking into account the opportunities provided by evolving information and
communication technologies and print-on-demand, these policies, aids and measures should
cover the following areas of the book and electronic publishing chain:
- creation (writers, collective creation)
- production of books (publishing firms)
- translation
- books and culture oriented categories of electronic publications
- distribution
- sales (booksellers)
- promotion.
15. Independent organisations and validation institutions should be instituted to
manage, where necessary and according to transparent criteria, the problems of the
selection of the objects of aids.
16. Statistical, economic and survey (marketing studies, surveys on reader and
user habits, on functional and technological illiteracy) observatories should be
instituted so as to monitor and assess national promotional policies, measures and aids
within the book and new access economy.
17. Training programmes for professionals and new emerging professions
within the traditional book chain and in the new access economy (electronic publishing)
should be elaborated and/or recognised by public authorities.
APPENDIX
Definitions
Books
The book is the contextualisation and inscription on a paper
medium of text and image for the dissemination of knowledge and information, whose
material boundaries are defined by the assembling of folded pages which are bound
together, but whose forms are highly flexible for a wide variety of usage. Most national
legislation of the Council of Europe member States define the book on the basis of the
binding criterion and a minimal number of pages (at least 16 pages). The definition of the
book in national legislation should not be content oriented as all books play a universal
role in society and their status is one of general interest.
Book clubs
Book clubs usually publish or buy and sell books by mail order at a
lower price than in the direct sales and booksellers' market. In retail price maintenance
markets, strict rules apply concerning the delay of publishing and selling through book
clubs: the delay is usually 9 months from the date of official publication. Such rules do
not apply in non regulated markets.
Copyright law
Copyright (or "droit d'auteur") is the domain of national and
international laws that regulate the ownership (and term of ownership) and usage of
intellectual products and creations of the intellect based on the criteria of uniqueness
and originality. Copyright covers the basic areas of moral and patrimonial rights of
creators. The basic distinction between Anglo-Saxon copyright and continental "droit
d'auteur" concerns patrimonial rights: Anglo-Saxon copyright allows for the transfer
of patrimonial rights to another party, whereas continental "droit d'auteur"
postulates that these patrimonial rights are inalienable within a specific time span.
DOI
DOI is the acronym for the Digital Object Identifier and gives a unique
identification to electronic publications and content in the digital environment. DOI is a
metadata unique identifier essential in the area of content retrieval (indexing,
electronic tables of content, bibliographic and product information) and attempts to
address the problem of retrieving content at a finer level of detail than a particular
manifestation or type of content.
DOI is not only an identifier but also a routing system linked to the
Uniform Resource Name (URN) standard which is a system designed to permanently identify
contents rather than their Internet locations.
EDI
EDI is the acronym for Electronic Data Interchange used in message and
commercial transactions (standard formatted business documents) concerning for example
price lists, orders and claims.
Electronic publications
The digitising and numeric translation process of texts, images and
sounds and thus the recontextualising of the canonical medium of the book gives rise to
the electronic ("numeric") publication whose boundaries are extensible through
hypertextual linking: all digitised texts, images and sounds (and elements thereof) in the
form of digit data (bits coded by 0/1) may be fixed, assembled, indexed and (cross)
referenced on a variety of digital media both off line, on such media as digital tapes,
CD-ROMs or DVD-ROMs, or on line, on computer networks and on the Internet through the
World Wide WEB interface.
Filtering mechanisms
Filtering and labelling mechanisms are part of the process of attaching
metadata to information. They are part of what is called recommender systems whose purpose
is to assess content. Filtering mechanisms are implemented by software programs or other
digital processes to exclude or block information and content, usually of what is deemed
"harmful" or "illegal" based on rating systems which are part of the
software or developed by service (host) and content providers, or third party agencies, as
well as authentication processes of users.
Filtering measures
Filtering measures are measures implementing filtering mechanisms
either on a self-regulatory basis (user's free choice) or through regulatory frameworks
and policies applied by agencies or institutional organisations. Due to the principles of
freedom of expression and free unrestricted access to networks and the Internet, an
ethical and responsible approach proposes the use of filtering mechanisms on a
self-regulatory basis.
Intellectual property
Intellectual property is the domain of national and international laws
that regulate the ownership of intellectual products and creations of the intellect. It
gives rise to a number of specific legislation such as copyright legislation, laws on
patents (governing inventions) and trademarks.
ISBN
ISBN is the acronym for the International Standard Book Number and
gives a unique identification of every published book.
ISSN
ISSN is the acronym for the International Standard Serial Number and
gives a unique identification number of every published serial (newspapers, magazines,
journals, etc.)
Free access
Access to information and communication, which is subject to no
restrictions other than those set out in the laws in force in the relevant jurisdiction.
Illegal/harmful content
Illegal data should be considered as content that entails a criminal or
civil offence under national law. Harmful content should be considered as content that is
detrimental to another party, namely children, under national law.
Content in categories specifically forbidden by the laws in force in
the relevant jurisdiction, such as those on obscenity, threats to public security,
personal privacy, or official secrecy.
Metadata
In the context of networks, information describing networked content,
equivalent to the cataloguing data and abstracts applied to printed documents. The Digital
Object Identifier is the most relevant.
Metadata platform
A network facility whereby metadata can be applied to content, and the
user will be able to access that metadata before accessing the content itself. The
Platform for Internet Content Selection (PICS) is the most relevant.
Networked communication
The exchange of messages and data between computers remote from each
other, using networks such as the Internet.
Networked information
Information resources available on computer systems open for access
from remote computers, over networks such as the Internet.
New access economy
The "new access economy" concerns not only electronic
publishing, but also all the economic activities on networks. "Access" must not
only be understood as the modalities by which it is possible to gain entry to networks so
as to obtain information or the possibility of knowing but also the research and obtaining
of information following on a processing of data. Until recently, the term "New Book
Economy" was used to designate the economics of electronic publishing. However, such
a definition is too restrictive in view of the variety of media that can carry digital
data.
Print-on-demand
Print-on-demand is an innovative new printing system based on digital
printing. An electronic publication that has been edited, pre-mastered and converted in a
standard format (such as Adobe PDF) can be situated anywhere on digital networks or
Internet and be downloaded on a digital printing system. The electronic publication is
thus printed and bound in exactly the same format where and when needed and at the same
cost for each copy. Such a method of printing allows for limited print runs, no investment
in stocks and a completely new form of electronic distribution.
Public Access Points
Resources of networked computer workstations intended for
citizens’ use for the whole range of possible cultural, leisure, or professional
purposes. They can be either publicly or privately funded.
Remaindering
Remaindering concerns the possibility of reselling unsold books at
discounted prices once they have been withdrawn from the initial bookselling market. In
retail price maintenance markets remaindering is regulated.
Retail price maintenance
Retail price maintenance (RPM) mechanisms are frameworks and measures
regulating the price of books within a country or a homogeneous linguistic cross-border
area implemented through professional agreements or national legislation. Such regulation
of retail book prices means that the prices are fixed for the same territory and under
certain conditions (term, limited discount, etc.)
Service providers of and on digital networks: access and information
providers
Access and host providers are providers of technical resources to
access digital networks or Internet.
Information providers and content providers are providers of digitally
processed materials and contents through locations on digital networks and the Internet
such as Websites.