Speech to European Commission hearing on Google Books Settlement, calling for greater flexibility in copyright. 7 September 2009.
Firstly, the Open Rights Group would like to make it clear that we need new services like online book searches, and every effort should be made to bring public domain and out of print books into the reach of European citizens.
But we must not see this as simply a process to deliver a compromise between two commercial interests.
Instead we must ask how best to deliver the wealth of European and world literature – and other cultural works – to citizens.
The position today is that copyright, having acted as an economic incentive to production, is now acting in Europe as a barrier to commercial and academic availability.
European literature may shortly be more widely available in the US than in Europe. This would be ironic, regrettable and damaging to European cultures. It is also unnecessary. So there is a need to act.
Our first main concern is that Europeans need a range of services delivering search and content sales. Competition is the way to deliver consumer choice, and address problems of censorship or deliberate suppression of content.
That means companies need to be able to locate rights holders, and also buy licences affordably so we do not for example price scanning of content out of reach. At the moment Europe is doing work to create a database of rights holders. This may make it possible to find the licensor, or the absence of one, but it doesn’t mean you can easily negotiate a licence.
We need some kind of collective rights management mechanism. The focus of copyright needs to shift from control to ensuring creators receive a fair reward.
We should also ask how pan-European rights can be obtained by vendors. Without pan-European licensing, as we see in music, some member states don’t benefit from online services. This means economic damage, loss of access to content and a resultant increase in online copyright infringement.
Our second concern is Digital Rights Management. ebooks sold online may be obliged by rights holders to include DRM. DRM has clear and significant adverse effects for the law-abiding consumer. It is used to create vendor lock-in, and force resales and upgrades. It can prevent completely legitimate activities, including transfer between formats and devices, fair dealing uses of works, and even the ability to have text read aloud automatically – a crucial need for the partially sighted.
We urge the Commission to enforce limits to Digital Rights Management technologies.
Our third concern is the public domain. Formats and licensing should not wrap public domain works in new layers of copyright and contract, preventing their reuse. We have extremely long copyright terms, lasting 70 years after the death of an author. It is therefore critical that out of copyright works are sold on that basis: the out of copyright content must be accessible and reproducible, exactly as copyright law was framed.
This is the bargain copyright makes with the public. At the point when these works may first be truly available again, this right must be enforced, or we make a mockery of copyright term, and will reduce creative economic output.
Our fourth concern is user privacy. EU standards on privacy are higher than those of the US. But book searches and reading data are potentially both lucrative and especially revealing, and have traditionally been given strong protection. We ask that Commission takes a close look at these concerns in relation to Google Books and other services.
Our fifth concern is academic access to works, including orphan works. Research, teaching and academic usage of resources like Google Books should be as wide as possible, and as free of licensing costs as possible.
Overall, we think we must now accept that there is something very wrong with EU copyright law. The incontrovertible evidence is that it needs substantial reform every time an innovative service using copyright works comes along. The US settlement, whatever its problems, highlights the flexibilities inherent in the ‘fair use’ approach,
which allows new usage rights to evolve, so long as the rights of the copyright holder are not prejudiced.
We would support the view that we need a limitation to copyright to allow the search and indexing of copyright content.
Unlike the US system, in Europe, we have a retrospective legislative debate to establish these user rights each time we need them.
This prevents new economic activities from emerging in Europe: and hands a massive advantage to the USA in a key creative industry. We should now be aiming to provide sufficient flexibility for innovative services using copyright works in video, tv and music as well as the written word.
So to recap: