Hola.
La semana pasada asistí dentro del WLIC de IFLA a una mesa redonda sobre
digitalización de libros y bibliotecas. En la misma, un representante de
Google explicó su modelo de digitalización y su intención de tener 30
millones de libros digitalizados. Google ha firmado acuerdos con
bibliotecas de diferentes países, aunque de momento sólo ha tratado el
problema de los derechos de autor en Estados Unidos. Google cree
resuelto los derechos de autor mediante sistemas como el Book Rights
Registry, mediante el cual se reparte el 63% de los beneficios entre
autores y editores registrados. Google se convierte en un proveedor de
libros electrónicos, cobrando por el acceso a sus fondos digitalizados y
repartiendo beneficios entre las posibles sociedades de gestión de
derechos de autor.
Ante la pregunta de cómo van a resolver los derechos de autor fuera de
los Estados Unidos, la respuesta fue una práctica invitación a que los
gobiernos o los editores demandaran a Google, a fin de llegar a
acuerdos. Mientras, ellos seguirán digitalizando.
En el mensaje que reenvío desde la misma lista de IFLA, se describe la
opinión del gobierno alemán, radicalmente contraria a que se digitalicen
obras de autores y editores alemanes. Atención al último párrafo sobre
el supuesto interés social del proyecto de Google y el monopolio virtual
de esta empresa.
Un abrazo.
Jose Antonio
-----
Desde IFLA-L, vía Frode Bakken, Noruega
A massive and principled critique of the Google book settlement
A growing number of players among publishers, authors, libraries etc are
critisising the Google book settlement.
Complaints and interventions towards the NY court can be found here:
http://news.justia.com/cases/featured/new-york/nysdce/1:2005cv08136/273913/
New in this context is that a government has presented its views officially to
the court - and this is the german government with its letter to the court of
31st of august 2009.
It can be found here:
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/179/0.pdf
The intervention is a massive and principled critique of the Google book
settlement and stands in sharp contrast to the positive position papers on the
settlement.
The conclusion of the german government is extremely clear:
"For all the foregoing reasons, the Court should reject the settlement proposal
in its entirety or, in the alternative, exclude German authors and publishers
from the class."
The main points of the german government are:
"As viewed by Germany, and summarized below, the primary flaws of the
proposed Settlement are:
- The Settlement will have a significant impact on the interests of German
and European authors and publishers, since they are bound by the
provisions of the Settlement unless they expressly opt out;
- Google's conduct is not compatible with the fundamental principles and
provisions of German and European copyright law, pursuant to which
each author's consent must be obtained before digital reproduction, display
and distribution. The Settlement is a private consensual "agreement" with
a commercial American company which owes its primary legal
obligations to its shareholders and not the public interest.
- An essential feature of international copyright law, as mandated by Berne,
is the prohibition of any formality as a precondition for enjoying or
enforcing a copyright interest. The U.S. eliminated such statutory
formalities when it joined Berne. The Settlement re-imposes such
formalities by requiring registration of authors and their works in order to
enjoy any of the benefits of the Settlement, thus assuring that many
authors will be left out through oversight.
- The creation of digital copies by Google for the purpose of developing a
commercially driven database is not permitted under German law as this
violates the author's exclusive right of reproduction. Under German
copyright law, rightholders must give their consent before any copies,
including digital copies, of books are made. Google's actions are not
justified by any existing exceptions (Sections 44a to 62 of the German
Copyright Act);
- Google's creation of digital copies for the purpose of developing a
commercially driven database is likewise not permitted under European
law. Pursuant to Article 2 of the Directive on the Harmonisation of
Certain Aspects of Copyright and Related Rights in the Information
Society (see 2001/29/EC the "Copyright Directive"), the European
Community author has an exclusive right of reproduction. Google's
actions violate this exclusive right and cannot be justified by any of the
exceptions provided for in Article 5, 2 and 3 of the Copyright
Directive;
- Digitization also constitutes reproduction under U.S. copyright law.
Unauthorized reproduction by Google on such a massive scale is not
justified by application of any "transformative" or "fair use" defense
recognized by the U.S. federal courts. 10 Google more or less concedes this
point by seeking this Settlement. Nevertheless, the proposed Settlement
compounds the infringement by forcing non-consenting German authors to
grant a license for acts that violate their rights under U.S. and German law
through a judicially-sanctioned compulsory implied "consent."
- Furthermore, opting out is unlikely to keep a German author's books from
being digitized and displayed as Google has intimated that it will continue
to treat the books of those authors as fair game under the rubric of fair use.
If an author does not agree and opts out, he or she has the "option"
to sue Google;
- The Settlement also permits Google to digitally scan books of German
authors and make them available to the public in the U.S. Authors of
"commercially available" books will still need to grant consent for this
display. However, should Google unilaterally determine that a book is not
commercially available (out-of-print), it need not secure any rightholder
permission -- meaning those who opted in by not opting out. Instead,
Google may make such display uses as it chooses unless the rightholder
follows the filing requirements. It seems unlikely that most German
authors will make such formal filings as such filings would, as discussed
above, normally be considered a formality prohibited by international
copyright laws. In failing to file, however, the works of the vast majority
of German authors will be held hostage to whatever uses Google, in its
sole discretion, chooses to make;
* As a consequence, the Settlement breaches the WCT which
provides in Article 6 that authors enjoy the exclusive right of
authorizing the making available to the public of the original
and copies of their works. Under the Settlement, no express
authorization by rightholders is required for out-of-print works.
For the reasons outlined above, most works of German authors
will be deemed commercially unavailable either because they
are out-of-print in the U.S. (generally because of the limited
demand for German language books in the U.S.), or the
authors neglected to file formal claim forms, or because these
authors are not easily found by Google. The determination of
commercial availability is solely within Google's discretion and
may, in close cases, give Google an incentive to balance
considerations in a manner that favors a finding that a book is
out-of-print;
* At the same time, the Settlement contravenes both German and
European law, since both recognize the right of "making
available" as an author's exclusive right (Section 19a of the
German Copyright Act and Article 3, Para. 2 of the Copyright
Directive). This right is analogous to the distribution and
display rights that "make available" public access to any given
work. As a result, U.S. law comports with international
copyright standards but the proposed Settlement does not;
* Under the provisions of the Settlement, Google is granted, as a
practical matter, a virtual monopoly in the U.S. on orphan
works, namely, those works protected by copyright where the
authors or rightholders are unidentified or cannot be located.
While not specifically identified as such in the Settlement,
orphan works still play an important role. Since orphan works
are usually out of print, Google does not need express
authorisation to make them publicly available, so that it faces
no adverse consequences should an author of an orphan ever
come forward. It is likely that many German authors will fail
to file claims, so that their works will become the legal
equivalent of orphan works. As such, the revenues generated
by their orphans will fall into the Settlement fund for
distribution only to authors who have filed rather than to the
many non-filing German authors;
* Other market competitors who might compete with Google will
not enjoy the same legal safe harbor from orphan work
liability. Such legal safe harbor would only be available to
competitors through legislation or litigation, thus, giving
Google a head start that can only lessen competition. In
contrast, Germany only recognizes such a limited safe harbor
for certain non-commercial uses of digitized works by virtue of
an enactment by the German legislature rather than a private
agreement. Similarly, the U.S. Congress has been considering
passage of orphan works legislation that would, through a
careful balancing of public interests, provide universal access
to orphan works while still maintaining some measure of
accountability by users. The Settlement, thus, not only
contradicts the laws of Germany but will also likely hamper
Congressional efforts to balance these competing interests. In
so doing, the orphans, whether from German or U.S. soil, will
not receive all of the protections they might otherwise have
enjoyed;
* Google searches conducted from Germany would include
orphan works. Such a service would violate German and EC
law because no consent has been given. Giving Google free
rein to unfairly compete in the marketplace will weaken
German and EC competitors while failing to adequately
compensate Gelman authors for their creative endeavours;
* The proposed Settlement results in a de facto monopoly on
information and an intensification of media concentration in
Google. As a result, the right of free access to information as
well as the existing cultural diversity in both Germany and
Europe, will be usurped; and
* German and European non-commercial library projects, such
as the Europeana and the DDB, currently in development
expose the fallacy of Google's argument that the social benefits
of the Google Library Project and Book Search outweigh the
copyright interests of the authors and publishers. The German
initiatives continue to advance even while complying with
traditional copyright rules. As shown by the German laws, the
social benefits can be achieved without the need or justification
to vest virtual monopoly power in a single private corporation.
n of media concentration in
Google. As a result, the right of free access to information as
well as the existing cultural diversity in both Germany and
Europe, will be usurped; and
* German and European non-commercial library projects, such
as the Europeana and the DDB, currently in development
expose the fallacy of Google's argument that the social benefits
of the Google Library Project and Book Search outweigh the
copyright interests of the authors and publishers. The German
initiatives continue to advance even while complying with
traditional copyright rules. As shown by the German laws, the
social benefits can be achieved without the need or justification
to vest virtual monopoly power in a single private corporation."
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