Copyright vs. Putting Books Online

Today's Guardian has an article on Google's library digitization project. Within ten years they are planning to scan every book ever published. Where does that leave authors? In an address to publishers given this week by Thomas Rubin, Associate General Counsel for Copyright, Trademark, and Trade Secrets at Microsoft, at the Association of American Publishers Annual Meeting held at the Yale Club in NYC, Microsoft puts the issue this way:-

Will we choose a path that nourishes creativity and innovation over the long term and that preserves incentives for authors to offer their best works online? Or will we choose a path that encourages companies simply to “take” the works of others, without any regard for copyright or the impact of their actions on authors and publishers too? Microsoft, I’m pleased to say, has chosen the former path. At its soul, Microsoft is an innovation company, and we’ve been working hard for many years to develop innovative technologies that allow readers to experience books online in new and exciting ways.

Amongst examples of the Microsoft principle to expand access and respect copyright is the British Library’s “Turning The Pages 2.0” technology. Launched in late January, it is built on Microsoft’s .NET 3.0 engine which is integrated into Windows Vista and also available as a separate download for Windows XP. This technology makes it possible for Internet users to view old texts no longer under copyright that would not otherwise be accessible to the public.

Rudin continues with the contrast between Microsoft and Google:

Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. Microsoft and most other companies, by contrast, take the position that they should get the copyright owner’s consent before they copy. The Copyright Act, in our view, supports this approach.

Reaction has been swift and the point about access (e.g. to obscurer books) well taken. “The goal of search engines, and of products like Google Book Search and YouTube, is to help users find information from content producers of every size,” wrote David Drummond, senior vice president and chief legal officer for Google, in response to Rubin’s remarks. “We do this by complying with international copyright laws, and the result has been more exposure and in many cases more revenue for authors, publishers, and producers of content.”

Drummond also noted that “in the publishing industry alone, we work with more than 10,000 partners around the world to make their works discoverable online.”

Ed Black, president of the Computer & Communications Industry Association, also spoke in Google’s defense, and asserted that Rubin’s speech was a “mischaracterization of copyright law.”

“Contrary to Microsoft’s suggestion, every unauthorized use of a copyrighted work is not infringement,” said Black, according to Vnunet.com. Black observed that Microsoft’s own search functions cache and index web pages, also arguably a form of copyright violation.

“Microsoft would do well to consider that its own business depends on fair use before brushing aside that important doctrine,” Black said.

Google has been offering alternatives to Microsoft for some time of which this is another example. Most authors and publishers, however, along with legal experts, disagree with Google’s rather novel assertion of “fair use”. In fact, they (including a subsidiary of Pearson, publisher of the Financial Times) have sued Google over its copying of the millions of books that its library partners – in the US and elsewhere – are making available. Stay tuned!