ICOMP

On Wednesday, 1 June, a meeting will take place in New York that could have a profound impact on the future of books. The parties to the U.S. Google Books case — in which Google stands accused of illegally copying millions of books — will meet with the court to discuss the way forward in light of Judge Denny Chin’s decision in March that Google’s proposed settlement of that case was unlawful.

To anyone who cares about European culture and the right of Europeans to decide their own digital future, this meeting could not be more important.

Judge Chin’s decision to reject the settlement was a clear victory for the literary world, as even the United States’ own Library of Congress has recognised. But it was also a victory for competition and consumers. As Judge Chin noted, “Google had engaged in wholesale, blatant copying without first obtaining copyright permissions . . . while its competitors went through the ‘painstaking’ and ‘costly’ process of obtaining permissions before scanning copyrighted works.” Google’s proposed settlement therefore would have had the perverse effect of rewarding Google for its illegal acts, giving Google “a de facto monopoly . . . [because] only Google has engaged in the copying of books en masse without copyright permission.” A significant number of these books were written by European authors or first published in Europe, and yet fell within the scope of the proposed settlement.

Judge Chin also underscored the risks of Google’s unlawful acts to the broader search market. As he noted, “Google’s ability [under the proposed settlement] to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”

That Google’s proposed settlement was illegal should not, however, prevent others, including rightsholders in Europe, from seizing our opportunity to make books available to readers online. The benefits of online access to books, through schemes that respect copyright and promote competition, are simply too great.

Börsenverein is engaged in precisely such efforts, and we are working closely and collaboratively with libraries, authors, and reproduction rights organisations (RROs) to achieve this goal. Just last week, the European Commission helped advance these efforts by issuing a proposed Directive on orphan works. The draft Directive sets out a framework for the use of orphan works by libraries and similar institutions to advance their public interest mission. Börsenverein has been very active in working towards solutions for orphan works and welcomes the proposed Directive. We look forward to working with the Commission and other stakeholders to support this proposal in the months ahead.

Besides tackling the question of orphan works, Börsenverein and its European partners, alongside authors and RROs, are engaged in a constructive dialogue with the library community to develop key principles for the digitisation and dissemination of books that are out of commerce. We are confident that these books can be made available to the benefit of readers worldwide without infringing copyright or interfering with competition.

As important and promising as these efforts are, they could be overwhelmed by what happens this week in New York. While we hope that the parties to the Google Books litigation will propose a lawful and balanced settlement, we are extremely troubled that Google has continued with its unauthorized scanning of millions of books even as this litigation remains unresolved. This is not only unfair, it also lends credence to opponents’ claims that Google will not hesitate to use its economic power to circumvent the law and to simply carry on with its plans where it is in Google own self-interest. As one objector whom Judge Chin aptly quoted put it: “[Google’s] business plan was: ‘So, sue me.’” So far, we have not seen any proof that this approach has changed.

We call on Google immediately to stop all unauthorized scanning and display of copyrighted books until all litigation over Google Books is resolved. Its actions otherwise threaten to undermine lawful digitisation projects and further entrench Google’s monopoly. If Google does not stop its unauthorized scanning voluntarily, the court should require Google to do so.

Judge Chin’s decision creates a unique opportunity for authors, publishers, technology companies and others to create innovative solutions that respect copyright, benefit the public, and advance competition. Google’s unilateral, legally unjustifiable, go-it-alone approach should not be permitted to destroy that opportunity.

Regards,

Jessica Sänger
Legal counsel, Börsenverein des Deutschen Buchhandels, The German Publishers and Booksellers Association

How can intellectual property rights help to boost economic growth and competitiveness in the EU? On 24 May, the European Commission gave its own long-awaited answer to this question.

Launching a Communication on its vision of a Single Market for Intellectual Property Rights, the Commission set out an overarching strategy on how intellectual property rights (IPRs) can support the ‘EU 2020’ growth strategy. This strategy focuses on making the EU a smart, sustainable and inclusive economy, set against five targets, including employment and innovation.

IPRs are seen as a key part of this strategy. In an era of rapid technological change and constantly evolving online behaviour, the Commission emphasises the need to strike the right balance between the promotion and protection of innovation and investment on the one hand, and consumer access to goods and services on the other.

Outlining the opportunities and challenges facing a single market for IPRs, the Commission concludes that IPR legislation should be “a governance tool that regulates and optimises the relationship between the three main players” – creators, service and content providers and consumers. The goal of the policy is not to create obstacles, but to enable, thereby allowing for the most efficient management of IPRs.

The Communication includes a list of planned actions, outlining the timeline for specific initiatives to be taken between now and 2014.

Copyright is at the heart of several of the policy initiatives put forward by the Commission. Before the end of 2011 the Commission will submit proposals to create a legal framework for the collective management of copyright to enable multi-territorial and pan-European licensing, with the possibility of a ‘European Copyright Code’.

The Commission also intends to improve access to Europe’s cultural heritage. First, it will promote collective licensing schemes for works protected by copyright but which are no longer commercially available. Second, it has adopted, also on 24 May, a proposal to establish common rules on the digitisation and online display of orphan works. Both initiatives are designed to boost the development of the online platform ‘Europeana’.

The Communication also deals extensively with counterfeiting and piracy, noting that organised and large-scale infringement of IPR has become a global concern. A first step in addressing the issue EU has been the EU Customs Regulation and the launch of the European Observatory on Counterfeiting and Piracy.

In addition, the Commission intends to review the IPR Enforcement Directive in spring 2012, identifying ways to create a framework for combating infringements of IPR via the internet more effectively. It foresees the tackling of infringements at their source, for which it will require the cooperation of intermediaries, such as internet service providers. The Commission highlights that any such amendments will respect all fundamental rights of consumers, as enshrined in the EU Charter of Fundamental Rights.

The text of the Communication is available here.

On 18 May, Professor Hargreaves published his long-awaited Review of Intellectual Property and Growth in the UK (the “Review”). The Review was initially commissioned by Prime Minister David Cameron in November 2010 to answer the following “exam question”: are laws designed 300 years ago to incentivise innovation by protecting creator’s rights no obstructing innovation and economic growth?

“The short answer” says Hargreaves, “is yes”. The fact that digital communications technology involves the routine copying of data, images and text means that the UK’s copyright law as it stands is less a protector of content than a barrier to the creation of new online business. Moreover the lack of certainty and in many cases disregard of where the law bites and, perhaps more crucially, where it will actually be enforced, only serves to undermine consumer confidence and incentives to invest.

The Review issues 10 recommendations including the following:

• Reform should be driven my economic evidence rather than lobbying clout
• The establishment of a Digital Copyright Exchange so rights holders can more efficiently license their content
• Legislation to enable the licensing of orphan works
• Creating pragmatic exceptions to copyright which protect activities such as library archiving and format-shifting for personal use, which do not prejudice its core objective: incentivising content creation
• An evidence-based assessment of the connection between design rights and innovation.
• The Intellectual Property Office with the necessary legal mandate to pursue economic objectives, access data and issue statutory opinions

UK rights holders have welcomed the restraint counselled by the Review. When the review was announced, wider reforms were being suggested which would have eroded rights holders’ positions and their ability to gain recompense for their content, though the aim of the review was to increase UK investment and innovation.

One notable symptom of this measured approach is the Review’s recommendation that the UK stop short of supporting the American “Fair Use” defence, concluding that it was unlikely to be legally feasible in Europe. Rather, Professor Hargreaves suggests that a many of the benefits of Fair Use could be better achieved by caveating existing EU law to allow copying where it does not trade on the underlying creative and expressive purpose on which traditional rights holders in the creative industries rely.

The Creative Coalition Campaign, which represents a number of creative industries and ICOMP member Premier League, was unreservedly supportive of the Review’s conclusions and described it as having rejected “moves to change the fundamental principles behind UK copyright law which would have damaged investment in the UK’s creative industries“.

Regards,
ICOMP Secretariat