EU: digitale Buch-Urheberrechte bis 2010 [en] 

In autumn 2008, the EU launched its own Internet library, 'Europeana ', giving access to hundreds of thousands of books, many of which are rare or out-of-print altogether (EurActiv 21/11/08). Paintings, music, maps, manuscripts and newspapers were also put online. 

The portal, which hosts some two million 'digitised objects' from all 27 member states contributed by around 1,000 cultural institutions, initially collapsed amid massive interest and millions of hits, but it has functioned normally since December 2008. 

Digitisation projects are being pursued by the private sector too. For example, Google Book Search allows users to view books or extracts of millions of books online after having conducted a keyword-based search. Seven million titles were covered by the service as of April 2009, and the database is expected to continue to grow as time goes by. 

Books digitised by Google include titles available in the public domain, copyrighted material reproduced with the permission of the rights holder, and out-of-print works. 

The legal implications of digitisation en masse and the potential costs for rights clearance are the two main issues that emerged from a consultation with libraries, publishers and other stakeholders. 

The Commission says it will deal with the copyright aspects of digital publishing in the context of a new strategy on intellectual property rights in 2010. 

Internal Market Commissioner Charlie McCreevy and Information Society Commissioner Viviane Reding were the joint authors of the communication, which is the result of a public consultation on 'Copyright in the Knowledge Economy'. 

Both Reding and McCreevy are ostensibly convinced of the benefits of digitising books to provide the knowledge economy foreseen under the EU's Lisbon Strategy. 

"We must boost Europe as a centre of creativity and innovation. The vast heritage in Europe's libraries cannot be left to languish but must be made accessible to our citizens," Commissioner McCreevy stated. 

Rights clearance too expensive 

The consultation revealed two divergent views: libraries, archives and universities favoured a flexible copyright system operating in the "public interest", and publishers and authors sought strict licensing agreements on the digitisation of published works. 

Libraries argued that it is in the public interest to have certain exceptions from the legislation, favouring broader access over copyright. Publishers counter that exceptions would allow 'free-riding' and decrease profits made through licensing contracts. 

The issue of rights clearance in particular will prove a point of contention between the two camps. 

Publishers want libraries to seek authorisation from the copyright holder before digitising material, but libraries argue that the cost of individual rights clearance is too high and too difficult, especially when it comes to unpublished letters, private diaries and business records. 

Orphan works still undefined 

In addition to costs, a second issue to emerge from the consultation is orphan works - books and published works whose rights holders are unknown (EurActiv 08/09/09). 

In a strict licensing scenario, orphan works would end up in a kind of limbo and would probably fade away on library shelves. However, the EU has not provided a clear definition of orphan works. 

A memorandum of understanding in 2008 failed to create a binding agreement on the use of orphan works. This uncertainty could open up a can of worms, most notably regarding potential copyright infringement of orphan works should a rights holder suddenly make himself known. 

Again libraries are worried that they will incur high costs if they are required to carry out an extensive search for the rights holder. 

The EU says it will define "the level of due diligence in searching for owners of orphan works" after it has conducted an impact assessment on the issue next year. 

Creating a European solution 

Reding reiterated her view that Google's settlement with the American Author's Guild in the US should not form the basis of a European agreement (EurActiv 08/09/09). 

"If we act swiftly, pro-competitive European solutions on books digitisation may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States," she said. 

The US settlement would see the creation of a Book Rights Registry whereby a larger cut of the money earned from works accessed via Google search would go to the rights holder - the author or the publisher. 

But this agreement would disadvantage European rights holders at it would limit access to European books located in US libraries to American consumers only, cutting their European owners off from a potentially lucrative deal.