Page:The digital public domain.pdf/96

Rh society at large, in furtherance of the common good. Article 5(2)c) of the Information Society Directive allows Member States to adopt a limitation on the reproduction right in respect of specific acts of reproduction made by publicly accessible libraries, archives, educational establishments or museums which are not for direct or indirect economic or commercial advantage. As the Explanatory Memorandum to the Directive specifies, the provision does not define those acts of reproduction which may be exempted by Member States. Moreover, this provision must be read in conjunction with Recital 40 of the Directive, which makes it clear that the European lawmaker intended to restrict the application of this limitation to certain special cases covered by the reproduction right, and not to allow uses made in the context of online delivery of protected works or other subject-matter. Regarding acts of electronic delivery, libraries are encouraged to negotiate specific contractual arrangements with rights holders. The making of digital reproductions of works in a library’s collection for purposes of preservation, however, falls clearly within the ambit of this provision, since it makes no distinction between reproductions made in analogue or digital format.

Not all Member States have implemented this optional limitation, and those that did have often chosen different ways to do it, subjecting the act of reproduction to different conditions of application and requirements. Some Member States only allow reproductions to be made in analogue format; others restrict the digitisation to certain types of works, while yet other Member States allow all categories of works to be reproduced in both analogue and digital form. In addition, Member States have identified different beneficiaries of this limitation. Some have simply replicated the wording of article 5(2)b), while others have limited its application to public libraries and archives to the exclusion of educational institutions. The prevailing legal uncertainty regarding the manner in which digitised material may be used and reproduced, is likely to constitute a disincentive to digitisation. This militates against cross-border exchange of material, and may discourage cross-border cooperation. However, as already mentioned in the Staff Working Paper of 2004, libraries face another problem