Sometimes it seem we are fixated on copyright act reform as the only way to achieve broader access to digital culture and are overlooking the attitudinal changes that are taking place within institutions and opening the way to wider access without the need for legislative remedies. Over the past year the Metropolitan Museum of Art quietly made its images available for academic use and was followed last month by the Victoria & Albert Museum. When two major international art museums recognize that they have more to gain by making their collections open to non-commercial publication and broad discussion than they do from licensing rights to non-remunerative uses, it reflects a massive attitudinal change that should be noted, celebrated and copied. Yet in discussions of barriers to access and public policy initiatives these changes have largely gone unnoticed.

Last month I attended the Canadian Digital Information Strategy Summit, a gathering of 100 invited guests hosted by the National Library of Canada to see if consensus could be reached on elements of Canadian public policy to promote a digital society. As usual, copyright law was a major topic of discussion and debate and opinions differed widely. But I sensed that there was an underlying shift in attitudes on the part of publishers and suggested that most of the interests expressed by librarians could be agreed by publishers outside the framework of copyright legislation. This week I met with leaders of the Association of Canadian Publishers to see how far we could agree on several issues the library community was pushing to have included in copyright revisions: the right to make digital preservation copies, transmit digital copies for interlibrary lending, make orphan works digitally accessible, and provide access to all Canadian publications in digital form. I was not overly surprised, but certainly was pleased, to find we could agree on a framework for each of these without resorting to copyright legislation. Specifically:

1) Preservation copying

• Libraries want to be able to make a digital copy for preservation purposes

• Publishers could thereby, in return, obtain a digital copy for their own purposes

Agreement would give libraries right to make such a copy in return for providing a digital copy to an ftp address registered by the publishers.

2) Inter-institutional digital lending

• Libraries want to be able to transmit a digital copy of a publication between libraries in fulfillment of ILL

• Publishers want to restrict the access to digital copies by end use

Agreement would be inter-institutional lending could take place using digital copies, but that the default would still be that the end user receives a hard copy, unless the publisher agrees otherwise. Could be implemented in conjunction with preservation copying agreement.

3) Digital Access to Orphan Works

• Libraries want to expand digital access to works in copyright but with no traceable owner.

• Publishers want to be sure that their rights to exclusive use are not compromised.

Agreement would establish simple due diligence process, including public pre-announcement of intention to make copy digitally accessible, publication of download data in monthly digital reports, and a process for claim by copyright owner with limit on reimbursement set to a standard correlated to CANCOPY fees.

4) Library/Publisher Digital Lending Framework

• Libraries would like to make all Canadian content available digitally

• Publishers need to control terms for that which they feel has current value

Agreement would establish a national digital lending framework for works that publishers choose not to make digitally available (under whatever terms they choose), with a mandatory digital link to obtaining a physical copy from publishers. Such a lending right could come into effect a fixed number of years after publication (5?) for items not otherwise digitally available. Levels of reimbursement to publishers would not be less than the current public lending right for authors and that this level, with inflation adjustment, would be legislatively frozen as a minimum.

Hopefully over the next few months these general frameworks for agreement on what have been seen as impossibly contentious issues will be formalized into agreements that the publishing and library communities in Canada can accept.

My point is simply that the rapidly changing digital content environment may be evolving within a static copyright law but that outside of statutory frameworks, attitudes are shifting rapidly and there are many opportunities to overcome what have been seen as absolute barriers.