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European IP Bulletin, Issue 25, September - Copyright
Copyright
4. Google's Online Books Project Under Attack
Despite the announcement from search giant Google that it was slowing down on its plans to scan the texts of millions of books and then place them online, the Authors Guild of America has launched a class action suit, along with several individual authors and editors, in the US Federal Court alleging copyright infringement by Google.
In its most recent scheme, termed Google Print, Google was planning to digitise the books from several major university libraries, making millions of volumes of literature and research material accessible online. It was investing $200m (£110m) into creating a digital archive of books from top US libraries Stanford, Michigan, Harvard and the New York public library, as well as digitising out-of-copyright books from the UK’s Oxford University. When Google Print was to be up and running it would direct potential buyers to publisher websites and provide reports about user interest in specific books. The scheme has, however, come under fire from several groups who object to what they say are violations of copyright.
Google acknowledged the fact that not all publishers and authors agree with the idea of Google Print but said it would continue with the project in the belief that most will choose to participate in the programme in order to introduce their work to countless readers around the world. Nevertheless, in response to the concerns of publishers and authors, Google announced that it would halt scanning of the copyrighted texts until November and asked publishers to “opt-out” of the scheme over the next three months.
This scheme did not satisfy publishers who objected to Google offering an opt-out, rather than an opt-in scheme. They claimed that the responsibility for preventing copyright infringement was now shifted to the copyright owner rather than the user.
Thus, in late September 2005, the Authors Guild, the United States’ largest and oldest society of published authors, and several individual authors filed their action against Google asserting that the scanning and digitising of books is a “massive” infringement of copyright. The Authors Guild is seeking damages and an injunction against Google. If granted such an injunction could potentially spell the premature end of Google Print.
It will be interesting to see how the US Courts tackle the issue. Although, in theory, the concept of Google Print has great potential, it is clear that in practice one cannot ignore the implications of the copyright laws, in place to prevent unauthorised use of copyrighted material.
5. A Hectic Time for Developments in Copyright Collective Management
The European Commission’s devotion to problems of collective rights management has been demonstrated through the elaboration of new business models for online exploitation, and the surveillance of collective licensing bodies from an antitrust perspective. Agreements made by collecting societies to find licence repertoires beyond national borders have attracted much attention.
The Santiago Agreement, notified to the commission in April 2001 by the music rights collecting societies in the UK (PRS), France (SACEM), Germany (GEMA) and the Netherlands (BUMA), is currently being considered by the Commission. Most European national societies have joined up to the Agreement. The purpose of this initiative is to transform collecting societies into one-stop-shops able to provide cross-border licences to commercial users and willing to offer music via downloading or streaming services. Users are thus able to purchase licences, valid throughout Europe and possibly worldwide, through a single transaction with a given national collecting society. Until this proposed Agreement, users had to address a separate request to each national collecting body in order to use the material within a specific territory. This antiquated procedure was found to be contrary to the borderless nature of the Internet.
Despite the innovative character of the new licences allowing for a better exploitation of content via the internet, the Commission has signalled its intention to reject the Agreement. This is because the current version contains an economic residency clause, limiting users to purchasing licences from the society established in their own country of residence (IP/04/586). This would contradict the goal of establishing a Common Market, and could turn out to be highly anti-competitive.
Given the Commission’s preliminary position, the Belgian and the Dutch collecting societies (BUMA and SABAM) have rejected the economic residency clause of the Santiago Agreement, avowing not to be part of any agreement that contains such a restriction. The Commission welcomed their initiative and, on the 17 August 2005, announced the opening of a public consultation addressed to interested third parties. Now that BUMA and SABAM have rejected the original Agreement, more desertions are likely to follow.
The Commission has further proposed a one-stop-shop collecting societies to enhance competition. According to the proposal contained in the Study on Community Initiative on the Cross-Border Collective Management of Copyright (7 July 2005), right holders could assign their rights directly to a society of their choice. Collecting societies would work as agencies covering only a part of the music repertoire, but would have the right to license it for the entire EEA and possibly worldwide. Competition among societies would be maintained by the need to ensure a high quality and convenient service is provided both to right holders and to users.
The innovative character of such a proposal suggests that the European collecting societies’ procedure will soon change. However, at the moment the proposal does not include a feasibility plan or a costs and benefits analysis for each category of stakeholder. It remains to be seen whether the net advantage of lower transaction costs for right holders will offset the increase in bargaining costs for the users, who would be obliged to purchase different licenses for a number of fragmented repertoires.
6. Moral Rights for Performers in the UK
The UK Patent Office recently issued guidance on the moral rights of performers. This precedes the Statutory Instrument that will introduce the rights into the Copyright, Designs and Patents Act 1988 (CDPA). The CDPA currently only provides for the moral rights of authors. As the Statutory Instrument will be presented in Parliament, the guidance is subject to change as and when required if changes are made by Parliament. The document contains guidelines on the provisions contained in the draft Regulations such as how the rights are to be granted, what rights are granted, to whom the rights are granted, the duration and transfer of the rights, and the exceptions.
In 2000, the European Commission approved the WIPO Performances and Phonograms Treaty (WPPT). Article 5 of the Treaty requires member states to provide for the protection of the moral rights of performers. The UK Patent Office subsequently held consultations with the industry representatives. There were responses to the consultation on the draft regulations implementing the performers’ moral rights. The guidance was a result of these consultations. The moral rights to be granted are the right of the performer to be identified as the performer and the right to object to any distortion, mutilation or other modification of a performance that may be prejudicial to the performer’s reputation. The rights provided for under the regulations are similar to the moral rights granted to the authors under the CDPA 1988. The rights are to be granted to the performers for their live performances, performances that have been broadcast, and performances of which sound recordings have been made and subsequently communicated or issued to the public. Although the rights are granted to the performer, the performer has to assert his identity. The regulations grant the rights for a term of fifty years.
The Regulations are limited in scope to the WPPT obligations and exceptions. However, there are several provisions that resulted in strong responses from the industry. First is the requirement that the right to be asserted must be identified in an instrument in writing, signed on, or on behalf of, the performer. This applies to the whole or any significant part of the performance. This goes beyond the provisions of WPPT. Second, the moral rights will not extend to performers in audio-visual performances. Third, the regulations, once in force, will only cover the performances done after the enforcement date.
Once in place the Regulations will no doubt have an impact on the performers as well as users of the performances. The performers will have a legal right to take action against third parties that infringe their moral rights. They will have the same level of protection as the authors in terms of their moral rights. Directors, producers of sound recordings and broadcasting organisations will be required to recognise these rights.
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