Copyright in a Digital World

Traditionally, distributors and publishers acquired rights from authors and then passed them on for retail, since physical copies were hard to reproduce and the distributor had a high level of control. However, digital technologies have altered this process, since authors can now publish directly in the online world and consumers have an enormous quantity of content and technologies at their fingertips. However in using them, it is almost inevitable that, they will violate copyright.

In this regard, over the last ten years there has been a number of initiatives (from the European Community Green Paper on exception of copyright to the IPO paper on copyright in a digital world) trying to understand and align all the different requirements.

On one hand, libraries, archives and Universities favour the “public interest” approach, calling for a more permissive copyright system. In their view, certain exceptions were more important for the knowledge economy than others. They wanted a mandatory set of core “public interest” exceptions to facilitate “access to knowledge”.

On the other hand, publishers, collecting societies and other right-holders argued that, the best way to improve the dissemination of knowledge and provide users with increased and effective access to works, was through appropriate licensing agreements.

There are two core issues: a) the production of digital copies of materials held in the libraries’ collection for preservation purposes and b) the electronic dissemination of these copies to users.

Currently, the digitisation of library archives or Universities collections requires prior authorisation from the right-holders:

  • Libraries argue that, this system of “prior authorisation” entails considerable transactional burdens, as publishers do not often have digital rights and the cost of individual right clearance is too high. Libraries also want to make their collections accessible online, particularly works that are commercially unavailable and argue that, this should not be limited solely to access on the physical premises.
  • Publishers and collecting societies, on the other hand, advocate the continuation of the existing system of licensing schemes and contractual agreements to digitise and increase online access to works. They claim that, easing the current exception to allow libraries to provide online services to users, would undermine the position of right-holders, create unfair competition to publishers and discourage them from investing in new business models.
  • Published results of publicly-funded research, should be available to the entire scientific community and to the public. A typical European university is required to sign a hundred or more licences, governing the use of digital research material supplied by various publishers. They also argued that, transnational licensing within the EU is difficult or impossible, as there should be one central organisation to grant a wide range of online rights, with respect to digital material. They also called for mandatory teaching and research exceptions, which should include a reference to distance learning.

    Publishers argued that, licensing solutions provide the required flexibility to cater to the requirements of teaching and research, including distance learning. They provide extensive electronic access to their databases, journals and books to libraries and educational and research institutions, through licensing agreements. In making works available for distance learning or home-use, publishers and licensing agencies stressed the importance of ensuring that, access is limited to the non-commercial and educational purposes, for which the material is intended.

    It seems that, a distinction between commercial and non-commercial use would be a step forward in reducing confusion in the digital environment. Whereas a case can be made for a broader, better-defined exception to copyright, that allows personal, use of legitimately obtained copyright works without explicit permission. This might apply not only to the reproduction of works, but also to creating derivative works and/or to sharing with family and friends; an expanded exception for commercial use could impact on revenues for rights-holders. An element of fair compensation for any loss would be required.

    Currently, the best way to address the digitisation process and on-line distribution is by modernising the licensing process, although some help is offered to right-holders by the Digital Economy Act 2010.

    The best approach is for relevant parties to work with IP and contract experts to devise various flexible solutions.

    In this regard, two cases are relevant. One is the Infopaq and DDF case and the other is the Google books project.

    Reproduction of newspaper articles and copyright:

    Recently, the European Court of Justice decided that, in addition to copying entire scanned copies of articles, the reproduction of the first 11 words from newspaper articles by a news aggregation service could also infringe copyright.

    Infopaq operated a media monitoring business which created summaries of selected articles from Danish daily newspapers and other periodicals. The articles were selected on the basis of certain subject criteria agreed with customers and the selection was made by means of a “data capture process”. The resulting summaries were sent to customers by email.

    In 2005, Danske Dagblades Forening (DDF), an association of Danish daily newspaper publishers, became aware that Infopaq was scanning newspaper articles for commercial purposes without authorisation. DDF claimed that the following four activities carried out by Infopaq infringed its members’ copyright:

  • Creation of TIFF files by scanning the articles
  • Creation of text files using the TIFF files
  • Storing and publishing 11-word text extracts from the articles
  • Printing out the extracts
  • The ECJ found that Infopaq’s activities infringed copyright. The act of copying an extract of 11 words during the data capture process was not transient in nature and therefore not exempt under Article 5(1) of the Directive. The ECJ therefore held that the process could not be carried out without the consent of the relevant right-holders.

    Google books in a broader European policy context:

    Google’s controversial project to digitise the world’s books and the proposed Google Books Settlement (the Settlement) with authors and publishers of copyright works in the US, which gained preliminary approval from a federal judge at the end of November 2009, has potential implications for European copyright law and policy and online distribution of copyright works in Europe.

    Google recently stated in a European Commission hearing that it will exclude all European books that are still “commercially available”. Therefore, such books will no longer be available to American consumers through a search on Google Books, unless the copyright owner has expressly agreed that the book could be included (under previous proposals, non-US copyright owners would automatically fall within the scope of the Settlement unless they actively opted out within a specified time frame).

    Further amendments were made to the Settlement in November 2009, due to continued international concerns, following which works will only be included in the digital project if they have been registered in the US or come from the UK, Australia or Canada. This means that 95% of all foreign works will no longer be included in Google’s digital book archive. As an additional protection, authors and publishers from the UK, Australia or Canada will have their own representation on the board of the planned rights registry to oversee the Settlement.

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