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European Law Works to Move Copyright Into the 21st Century
Posted On October 7, 2014
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“Now,” Robinson continues, “enter the digital era of publishing. The library is facing obsolescence. Libraries have to move away from being large buildings full of expensive books. Not only do the books cost money, but the library itself creates a significant cost-of-carry. The whole library could be put on a disk that would fit in your pocket. Publishers are trying to deal with this by creating a means to allow libraries to pay for digital books and lend them in a way that is not unlimited (i.e., we can’t have libraries buy one digital copy of every book and then ‘lend’ access to that book to 1,000 people, or the library would erode the entire market for ebooks). Thus, for many books, there will probably be a future for what we might call e-libraries. But, there are two problems: First, old books that don’t have any active means of licensing digitally; and second, the bargaining power of the library as to the publisher. My thinking is that the decision here by the EU enables libraries to get at #1 above, empowering a library to exploit all of its current physical content, while also signaling to the publishers to strike a fair deal with libraries or risk the libraries having at least some power to side-step the publisher altogether.”

Columbia Law School professor Jane Ginsburg notes that the ECJ’s ruling, “particularly the take-home-a-copy part—but also the court’s ruling that the availability of the print book as an ebook—did not limit the library’s entitlement to digitize a print book in its collection, is likely to be perceived by publishers as competing with the market for ebooks. The impact is limited to the extent the library can’t make the digitized book available remotely; to view the book or get a copy the patron has to go to the library. And the library-digitized version won’t have whatever additional features the ebook publisher may provide. But it also won’t have whatever copy protections the ebook publisher builds in, so that means that the library patron’s take-home copy could be further duplicated or for that matter, communicated over the internet. So you can imagine the publishers might be very concerned about possible consequences.”

Continuing to Push the Copyright Envelope

On Oct. 1, a new British law came into effect that includes specific rights to parody copyrighted materials since, according to the EU, “the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery.” The owners of the copyrighted work will now only be able to sue if the “parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message.”

The U.K. legislation, The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, was passed in keeping with the EU’s copyright directive, which was enacted to harmonize aspects of copyright law across EU countries “to adapt legislation on copyright and related rights to technological developments and particularly to the information society.”

This legislation allows for the parodying (think Monty Python or Saturday Night Live) of movies, songs, and TV programming—including the large number of mashups popular across the web as well—without needing to obtain permission/licensing in advance. This action puts into law the notion that parody is a form of free expression and creativity. The law, in fact, asserts that “parody does not have to be original (besides carrying apparent differences with the original work it is borrowing from), the new work does not have to be attributable to somebody else than the author of the original work nor does it have to relate to or mention its source.”

This new British law enables libraries, artists, and students to critique and satirize popular cultural icons without fear of litigation, again providing a more open environment for the evaluation of existing works and the creation of new works by building on the frameworks established by others.

Looking to the Future in the U.S.

None of these European actions have any direct effect on American law. However, with a large international marketplace undergoing changes, it may be difficult for publishers (all international in their reach today) to enforce dual systems in their contracts and other dealings. However, in this global marketplace, change in any arena can bring broader changes to the market as a whole. “If ebooks are like paperbacks,” notes Emily Williams, co-chair of the BISG (Book Industry Study Group) Rights Subcommittee, “a new format that will cause some disruption but ultimately expand readership and learn to coexist peacefully with previous formats, then the old business model with its grip on life-of-copyright may well survive. If, on the other hand, today’s ebooks are the harbinger of an all-digital future that will crack the walls of print and bring them crumbling down, well in that case … the revolutionaries are at the gate.”

Discussing the TU Darmstadt v. Eugen Ulmer case, Cotter says, “I’m not sure there will be any major impact” in the U.S. “After all, we’re just talking about making available copies of books the libraries already own, and subject to the limiting conditions discussed in the opinion. Publishers may lose a few extra sales here and there and I suppose that can add up—otherwise they wouldn’t care, and obviously this one did—but perhaps it won’t make much difference to very many of them in the long run. I’m just speculating, though.”

“Maybe the EU isn’t so crazy on this decision,” Robinson conjectures. “Can we imagine a world where we say to someone who owns a book: You may make a copy of that book for your own use, and you may only do with it what you would have done with your old physical book? We all did this with our CD collections, and it has not slowed down the growth of iTunes music sales, right? If we take that same approach with libraries … allow them to digitize their existing physical copies … what will this do to the market? On the one hand, some libraries may not buy a digital copy of a book that they just scanned. But, if they are given a reason and means to go digital, then in the long run, we are actually giving libraries a huge incentive to go all digital, and once they do that, then the publishers will have a new means of distributing digital content because libraries will have digitized their books and now will only want to buy digital books as they come out. The library won’t order a new copy of Dune because they scanned the one they had, but they may order the next Dan Brown novel. You see? The libraries would have an incentive to become digital platforms, and thus a source for larger digital sales down the road.”

Long-time scholarly publisher Sandy Thatcher notes that “courts in Europe and elsewhere seem to have always been a little more willing to extend educational exemptions a little further than U.S. legislators and courts have. On the other hand, Europe has the public lending right and moral rights that burden users in ways that do not exist in the U.S. I think much would depend in the U.S. whether this privilege would be seen to have a strong market impact on publishers. Given the limitations on downloading and printing, I’m not sure it would. This seems more like allowing purchasers of a copyright work to use it on more than one platform, which is becoming more accepted under U.S. law. The ebook’s story has always been one of twists and turns—and this seems to be continuing today (and who knows about tomorrow!).”

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Nancy K. Herther is a research consultant and writer who recently retired from a 30-year career in academic libraries.

Email Nancy K. Herther

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