Willi Egloff, Der Zugang zu Fachinformationen – zwischen gesellschaftlicher Notwendigkeit und privatem Verwertungsinteresse, in: Hansjürgen Garstka/Wolfgang Coy (eds.), Wovon – für wen – wozu: Systemdenken wider die Diktatur der Daten, pp. 349–373 (Berlin 2014).
Background
Wilhelm Steinmüller, a German jurist and psychotherapist, died on 1 February 2013. The voluminous book edited by Hansjürgen Garstka and Wolfgang Coy was published as a tribute and in honour of Wilhelm Steinmüller who was a pioneer in the field of law and informatics. The tribute focuses – amongst others – on the scientific work of Steinmüller, including articles that describe the perspectives of law and informatics and the freedom of information. Together with Herbert Fiedler and Spiros Simitis, Steinmüller impressively influenced the discipline of law and informatics since 1970 (cf. Forstmoser, 1.2). He contributed many renowned scientific publications to this legal field.
The text of Willi Egloff is part of the tribute and describes the following topic: «Der Zugang zu Fachinformationen – zwischen gesellschaftlicher Notwendigkeit und private Verwertungsinteresse (translated: «Access to Scientific and Technical Information – Between Social Needs and Private Interests»). Egloff’s text is divided into five sections: (i) introduction; (ii) scientific and technical information: from state centres to privatisation; (iii) legal changes ensuing from the privatisation of specialised information; (iv) the demand for access to scientific and technical information; (v) the particular case of text and data mining. The text is part of the section regarding the freedom of information.
Willi Egloff holds a doctorate of law from the University of Zurich. He has worked at the University of Regensburg (as assistant to Steinmüller), the District Court of Zurich and the legal department of SRG SSR (public Swiss broadcasting provider). Since 1983 Egloff has run his own law firm in Berne. Egloff is also legal counsel of the Swiss Film Producers’ Association and a member of the executive board of the exploitation company Swissperform.
Summary
Egloff’s text starts with the statement that knowledge is vital to the development of human beings. He describes the importance of the self-development as a central aspect of the Enlightenment. According to Egloff, the creation of the «Encyclopédia française» in the 18th century can be seen as an early but significant stage of this development. The Encyclopédia française was a general encyclopaedia edited by Denis Diderot and Jean le Rond d’Alembert; it was published in France between 1751 and 1780.
In the next section, Egloff examines the scientific and technical information under the premise «from state centres to privatisation». He describes the so-called «German Program on Information and Documentation» («IuD program») of 1974; the German government attempted to create a new type of encyclopaedia by establishing national information centres for science and technology, built in line with the constitutional provisions. However, the IuD program was never fully implemented; such a comprehensive documentation system is only now realised by the Internet.
Most of the necessary information (to work scientifically) is available online. Therefore, the creation of national information centres is not needed anymore. Nevertheless, the process of selection – which is important in order to gain diversity of information – is now not made by governmental institutions but by search engines such as Google. In addition, search engines can decide who gets access to relevant information and how content can be reproduced. These developments make it difficult to regulate access to information as an aspect of human rights since private businesses are involved instead of the state.
Furthermore, Egloff states that the information on the Internet is often de facto privatised. Unlike the access to online information, the information in state libraries, archives, and other public institutions is often not free of charge. As a result of these developments, state institutions find it difficult to hold a comprehensive range of publications in each field of expertise and to make them accessible to its users.
In a further section, Egloff discusses legal changes ensuing from the privatisation of specialised information. He underlines that the mentioned developments are quite delicate since a property right of information has still not legally emerged. Furthermore, there is also no «ownership right» of information as property right. However, access to information is often denied, not because of exclusive intellectual property rights, but on the basis of de facto barriers.
Egloff’s text describes the legal framework, mainly in the European Union. Thereby, Egloff examines the legal protection of technical measures in the WIPO Copyright Treaty (WCT) of 1996 and in the EC Directive 2001/29/EC. The EC Directive addresses the harmonisation of certain aspects of copyright and related rights in the information society. Furthermore, Egloff discusses the sui generis protection of databases that was introduced in the EC Directive 96/9/EC. Criticising the implemented framework, Egloff states that legally binding licences should be implemented to counteract the increasing privatisation of specialised information.
Furthermore, Egloff’s text discusses the call for access to scientific and technical information. He underlines the increasing importance of open access (cf. Hilty, 3.3) with regard to a variety of national, regional and international declarations. However, the implementation of open access is often jeopardized by the behaviour of publishers who monopolise their published content by acquiring copyright of the relevant publications. Therefore, authors of publications lose the chance to make them accessible to a wider public by republishing their work. In contrast, Egloff refers to § 38 para. 4 of the German Copyright Act («secondary exploitation right») that could be considered as a possible solution.
In the last section focusing on access to specialised information, Egloff pleads for new forms of information processing. He refers to the European Commission having initiated the program «Licenses for Europe»; thereby, the Commission built working groups to search for new legal rules that facilitate text and data mining; Egloff concludes that a need for new mandatory licenses is clearly given.