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Google Book Scanning Program

When I first heard about the Google Book Scanning Program, I thought: They can’t do that, it breaks copyright law. I now know this position is too simplistic.

So why did I change my opinion? Well, I bought an ebook reader. And quite a few of the books that were free were about copyright and copyright law. I read them. To my surprise I found it a fascinating subject. These books included Free Culture by Lawrence Lessig, The Public Domain: Enclosing the Commons of the Mind by James Boyle and CONTENT: Selected Essays on Technology, Creativity, Copyright and the Future of the Future by Cory Doctorow.

As technology advances the law needs to change to keep up. And, perhaps surprisingly, the law has been remarkably good at adapting itself to the advent of new technology. I’ll qualify that: when new broad laws or judgements are made they tend to understand the essence of the new technology and these laws or judgements tend to be remarkably robust, some are even almost prescient (the judgement that software should be protected by copyright law, not patent law, for example). However when new specific laws or judgements are made to address a particular problem the result tends not to be so good.

The pioneers of technology often find themselves in a grey area of the law, or even on the wrong side of the law. Lessig’s and Boyle’s books are full of examples:

  • In the early days of aviation it was illegal to fly over private property, since the owner’s property rights extended indefinitely upward.
  • When radio started broadcasting recorded music the artists complained that their “creative property” was not being respected and that they should be paid. This claim was rejected (when a radio plays a recording it only has to pay the composer, not the artist)
  • Cable TV.  When companies first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold.
  • VCR. When Sony produced the VCR the film studios claimed that, because the device had a record button, Sony was benefiting from the copyright infringement of its customers. Then MPAA president Jack Valenti warned, “When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of ‘tapeworms,’ eating away at the very heart and essence of the most precious asset the copyright owner has, his copyright. One does not have to be trained in sophisticated marketing and creative judgment, to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense.”

Progress often requires technology pioneers to test the law. If Sony had just acquiesced and said “OK, VCRs are illegal, we won’t do those” it would have been to the detriment of everybody: the general public and the movie and television industries.

As technology evolves, the law adjusts. In the case of copyright sometimes this means more rights for creators, sometimes less. As Lawrence Lessig says in Free Culture:

In each case throughout our history, a new technology changed the way content was distributed.  In each case, throughout our history, that change meant that someone got a “free ride” on someone else’s work. In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of “piracy.” In every case, Congress acted to recognize some of the legitimacy in the behavior of the “pirates.” In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake.  In our tradition, as the Supreme Court has stated, copyright “has never accorded the copyright owner complete control over all possible uses of his work.” Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates.

The Google Book Scanning Program is just another case where the law must balance the interests at stake. It is certainly in the public interest that our cultural heritage is digitised and made searchable. It’s also in the interests of authors. It’s in the public and authors interest that out of print works are made available.

It’s not, however, in anyone’s interest that Google has a monopoly. But the way to avoid a monopoly is not to stop Google digitising books, but to get more people to do so. Amazon. Microsoft (which only recently stopped its digitization project). Government funded Legal Deposit Libraries (such as the British Library). The EU free access library Europeana.

It seems that after initial knee-jerk reactions people are coming to their senses. In July, Viviane Reding, EU Commissioner for Telecoms and Media, stated:

We should create a modern set of European rules that encourage the digitisation of books. More than 90% of books in Europe’s national libraries are no longer commercially available, because they are either out of print or orphan works (which means that nobody can be identified to give permission to use the work digitally). The creation of a Europe-wide public registry for such works could stimulate private investment in digitisation, while ensuring that authors get fair remuneration also in the digital world… Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic . Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe.

On the 7th of September EU Commissioners Reding and McCreevy issued a joint statement: It is time for Europe to turn over a new e-leaf on digital books and copyright. In it they said:

…we also need to take a hard look at the copyright system we have today in Europe. Is the present framework still fit for the digital age? Will the current set of rules give consumers across Europe access to digitised books? Will it guarantee fair remuneration for authors? Will it ensure a level playing field for digitisation across Europe, or is there still too much fragmentation following national borders? What could be the contribution of Europeana, Europe’s digital library, when it comes to working on a European response to digitisation efforts in other continents? Is Europe’s copyright framework modern enough when it comes to digitising orphan works and out-of print works? These books represent the vast majority of European libraries’ collections (around 90%) . In our view, these books must be recovered and given a new lease of life.

Once again the law is adjusting itself to technology.

I’m a technologist. I love technology. But now I’m starting to love the law as well. I certainly understand why some people have a passion for the law.

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  1. Mar 26, 2010 at 14:21

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