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EU will consider new copyright exception for book scanning projects

The European Commission has said that it might introduce a statutory exception to copyright law that would allow libraries to make digital copies of books. Libraries have claimed they need such a right but publishers oppose it.20 Oct 2009

The Commission has consulted on the copyright law implications of digitising books on a mass scale and has said that libraries and universities are at odds with publishers and authors over how digitisation should be carried out.

The Commission has expressed concern recently that its culture digitisation project, Europeana, might be overtaken by a foreign commercial project, most probably by the Google Books scheme. Google's book digitisation scheme is in the latter stages of negotiation with rights holders on copyright issues.

Reporting the results of its consultation, the Commission said that there was a gulf between the interests of libraries and publishers.

"Broadly speaking two divergent views emerged. Libraries, archives and universities favour the 'public interest' by advocating a more permissive copyright system," said the Commission report. "Publishers, collecting societies and other right holders argue that the best way to improve the dissemination of knowledge and provide users with increased and effective access to works is through licensing agreements."

The Commission said that the main problem facing libraries and universities was the cost of obtaining specific consent for every one of the hundreds of millions of works they will want to digitise. A more cost-efficient method was needed, it said.

The Commission said it would examine the introduction of collective licensing to solve this problem, but would also consider legislating to exempt library activity from copyright law altogether. "The Commission will consider whether there is a need for further initiatives as part of the new strategy including the possible creation of a statutory exception for such digitisation efforts," it said.

"Libraries and academics state that certain exceptions are more important for the knowledge economy than others," said its report on the consultation. "They favour a mandatory set of core 'public interest' exceptions to facilitate 'access to knowledge'. They also expect that these exceptions are not rendered moot by technological protection measures (TPM). The confines of copyright should instead be defined by the legislator," said the report.

"Publishers, collecting societies and other right holders consider that an equally satisfactory result can be achieved by contracts, often tailor-made to cater to new technologies. Publishers state that mandatory exceptions could undermine economic rewards and encourage so-called 'free-riding'," it said.

Google is also locked in a legal battle over its digitisation project. It reached agreement with authors and publishers groups, though, in a deal which still requires US court approval before becoming fully active.

Information Society Commissioner Viviane Reding admitted that the EU was effectively in a race against Google.

"Important digitisation efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitisation takes place on the basis of European copyright law, and in full respect of Europe's cultural diversity," she said. "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."

Book digitisation projects face the problem of what to do about 'orphan works', books that are still copyright-protected but whose copyright-owner cannot be found.

The Commission said that it would need to research this issue further to find a solution. It said that an exception to copyright law was also one option for orphan works.

"Possible approaches include, inter alia, a legally binding stand-alone instrument on the clearance and mutual recognition of orphan works, an exception to the 2001 Directive, or guidance on cross-border mutual recognition of orphan works," it said.