Orit Fischman Afori

The Battle Over Public E-Libraries – Taking Stock and Moving Ahead

In this digital era, public and academic libraries serve as key players in the promotion of access to knowledge. The legal discourse concerning realization of the promise of public e-libraries has thus far focused on two major battle-fronts: mass digitization of libraries’ collections and free access to the products of academic research funded by the public. Nonetheless, the radar of public and legal discourse has failed to identify a far more troublesome phenomenon, one which presents a threat to the very ability of the public e-libraries to fulfill their function. The digital era has created a profound shift in libraries’ practice, finding expression in the transition from purchasing shelf-books to purchasing licenses to electronic resources. These licenses control the libraries’ ability to pursue their declared goals, and highlight the core problem of private ordering in the information market. One of the most acute manifestations of this problem is the common practice, which has taken on worldwide dimensions, whereby these licenses restrict various uses otherwise permitted by copyright law. The exceptions and limitations acknowledged by copyright legislation are tailored in a manner that gives increased weight to the public interest. The clash between the phenomenon of restrictive contracts and the policy underlying intellectual property is therefore clear. The position advanced in this article is that there are sound justifications for a focused rule that would invalidate restrictive contracts, at least in the context of public e-libraries. These justifications are based on the function served by public e-libraries as a gateway to knowledge and in the promotion of social justice and freedom of speech. Moreover, the proposed rule should be adopted on an international level; otherwise it can easily be circumvented. The global political economy in the copyright arena has experienced major upheavals in recent years, resulting in a steadily growing demand for the expansion of users’ rights. These developments create the potential for the adoption of an international instrument designed to regulate the sphere of public libraries.

Proportionality -- A New Mega Standard in European Copyright Law

Modern copyright law is designed so as to accommodate the needs of a dynamic reality through the extensive use of open standards, aimed at reconciling conflicting interests. In the past few decades the tension between the competing interests has intensified, and contemporary global copyright discourse has focused on the relationship and tension between traditional copyright interests and fundamental rights, such as freedom of expression, data protection and privacy. Against this background, a new path is gradually emerging in European and English copyright law, in which a new standard – “proportionality” – is being established to moderate the growing constitutional tension. The notion of “proportionality” is an acknowledged principle in European law. This article attempts to examine the relatively brief and recent history of the proportionality test as implemented in the copyright sphere and to understand its potential trajectories. Proportionality has been adopted as a measure for scrutinizing remedies granted in cases of copyright infringement. A growing body of literature acknowledges that remedies affect the scope of rights. The implementation of the proportionality test as a remedy-based measure in the copyright context firmly supports this position. The development of the new standard in European and English copyright law thus far sketches a picture of a sophisticated vehicle for adjusting remedies to constitutional tensions within the substantive civil copyright arena. The strength of this mechanism lies not only in its flexibility but also in its ability to simplify acute conflicts between competing fundamental rights and transform them into a dialogue which involves a more factually oriented balancing of interests, examined through the prism of remedies. The proportionality test therefore, may indeed take European intellectual property law to its inevitable new constitutional phase.