Hearing on digitisation of books and copyright: does one trump the other? Tuesday 23 March p.m p.m. ASP 1G3

Transcription

1 Hearing on digitisation of books and copyright: does one trump the other? Tuesday 23 March p.m p.m. ASP 1G3 Dr Piotr Marciszuk, Polish Chamber of Books The main cultural challenges arising from the current mass-scale digitisation of books. We have been undergoing the most significant revolution since the Gutenberg invention. The digitisation of books means not only a change in the medium in which books are produced but also a mental revolution. The advantages of the process are quite obvious: theoretically much wider access to potential customers, lack of borders in communication, easier marketing and promotion, lack of logistic costs and skipping the print stage of production. One might think that the Internet is a great challenge in a positive sense to publishers and in reality it is. But it is also a threat which jeopardises the very existence of this profession. This main threat is the fact that users of the Internet have got used to getting everything for free. The digitisation of books responds to a multitude of needs expressed by Internet users and cultural consumers in general. These needs are mainly covered by the expression 'open access', which has also become a political demand, since the mass user of the Internet is primarily a political voter. Politicians often express their wishes to open access to nearly all contemporary content, including copyrighted material. In this context it is worth mentioning why publishers are so afraid of the free dissemination of the copyrighted works including orphan and out-of-print works because it means a complete change of the cultural pattern that has dominated Europe until now. Today s culture (except for the part that is financed by the state) is a business and demands investment. Investors in turn expect a profit from their investment. Culture for free is a twofold issue: 1. Firstly, it might be dominated by user-created content online, which is, of course, not bad as it marks the democratisation of culture. On the other hand, however, it means a rapid development of mass culture instead of high culture. User-created content also means a proliferation of content accompanied by a shortage of criteria for choosing the most valuable material. It is imaginable to have millions of novels online (of course not edited by professionals) that nobody would read. In short, it might be amateur culture created mostly by amateurs. Professional publishers (or professional animators of culture and professional editors) are the guarantee of high quality in culture. 2. Secondly, if culture no longer gave any profit for investors, they could shift their money to different fields of business. The next and inevitable step is to finance culture only from state (or EU) funds. This, of course, means ruthless fight for commissions from the state and the main criterion of choosing this and not another offer might be to have contacts, if not corruption itself (it differs from country to country). We in Poland remember very well that 1

2 nothing can be done well by the state and that private initiative is much more effective. It is also worth mentioning in this context that it is very hard to set up a profitable business but very easy to destroy one. The emptiness arising from such destruction is very hard to fill up it might be simply cultural collapse and the end of culture financed from private resources. Another aspect of digitisation concerns education. In mid-january the International Publishers Association organised a meeting in London of educational publishers from different European countries and from the United States. The results of the meeting were even shocking for publishers well acquainted with the problem of digitisation in schools. Firstly, it turned out that all these countries shared nearly the same experiences. The digitisation claimed everywhere as a miraculous solution for all educational problems (mainly as the best means of attracting pupils), turned out to be a persona non grata in most countries. Nobody wants it pupils, because they see in it a way of exercising their knowledge rather than acquiring it; teachers, because they cannot imagine a whole lesson run only with computers. Teachers also do not want to create educational materials; they expect, rather, to get all their materials ready-made. Moreover, they always feel they are worse at computing than their pupils so are afraid of being ridiculed by them. Laptops for every student seem a wonderful solution but they go out of date very quickly, are stolen, sold and lost. Moreover, laptops substitute writing by hand and text editors automatically correct mistakes. Laptops in education would result in an illiterate generation. Publishers from all countries present at the conference admitted that schools in their countries spend no more (or even less) than 1% of all expenditure on educational content (except Holland where it is 4%). The worst situation is taking place now in Norway, where the government and local authorities have introduced a compulsory programme for all schools of exchanging paper textbooks by electronic content online for free, of course. Teachers and pupils are striking together against this solution but the worst thing is the complete destruction of the educational market. Educational publishers are sentenced to economic extinction and this situation has a terrible influence on the whole publishing market. Digitisation introduced by force has a huge negative power. Coming back to the digitisation process supported by the European Commission and European Parliament, it is obvious that both institutions encourage the digitisation process (under such initiatives like Europeana) and appeal all the time for respecting intellectual property rights, especially authors and performers rights (Report on Europeana the next steps by Helga Truepel). Such expression, very often used in official documents of the European Union, gives the impression that there is no danger for right holders in Europe. But right holders are not so quiet as when, for example, a distinguished Polish MEP called on the European Commission in a written question to amend EU rules which prohibit libraries putting copyrighted works into the Internet free of charge. He does not see the connection between free content and the destruction of cultural businesses which I outlined above. He sees only one side of the coin that activities of libraries are not commercial ones. Libraries do not publish books, they lend them. If the publisher does not produce books, libraries would not have anything to lend. There is a need for balance between producing books and lending them. 2

3 The second source of publishers' anxiety is that the European Commission says that Europeana, in order to fill up the black hole of the 20th century, should contain orphan and out-of-print works. As far as orphan works are concerned, the High Level Expert Group made some statements to the EP saying that a diligent search of copyright holders is strongly required and it would be helpful if national databases of orphan works existed. In this case we should be very cautious because databases of books-in-print only exist in a limited number of countries and only there would it be easy to establish a database of orphan works. The problem of orphan works requires a lot of rights clearance and is not as obvious as it sometimes seems to be. This is why publishers develop ARROW together with librarians and collecting societies. Poland will be in the second round of the ARROW project. The problem of out-of-print works also requires deeper consideration. While it is perfectly understandable that cultural institutions want to digitise their collections, it is also important to understand that the true value of a publishing house is its backlist, a list of all the books that have been once published by that house and that might be out of print for a multitude of reasons. Digitisation technology, coupled with the development of electronic reading and print-on-demand, will make it viable for publishers to digitise older books and to offer a complete range of books. We need a dialogue between authors and their publishers and cultural institutions wanting to digitise the same content. As an example, the French Nobel Prize winner Le Clezio had written some 40 books before he was awarded the prestigious prize. Most of his books were out of print but they have since been reprinted and are available again in bookshops. We need to sustain the entire book chain from authors to booksellers including, of course, publishers. Libraries also have a role in this chain, however all stakeholders have to work together to sustain a healthy European and national book sector. To summarise works out of print are not works out of copyright. They belong to the right holders and only right holders may decide what to do with them. 2. Public-private partnerships in the European Union as a suitable solution for digitisation This has already been examined by the High Level Expert Group on digital libraries. Publishers insist that partnership should be established within the framework of applicable copyright law. The law does NOT permit commercial entities to digitise WITHOUT the permission of the right holders. Libraries can digitise for preservation purposes or for permitting access within their premises but commercial entities cannot. So while we fully understand the need in certain cases to have joint financing or operation in case of digitisation, we insist that this needs to be undertaken with the consent of the right holders. Obviously, if the work is in the public domain then, as Mrs Truepell's report states: public domain content in the analogue world should remain in the public domain in the digital environment even after the format shift. Another example of public-private partnership is the French project Gallica 2, which means cooperation between the French National Library and French publishers, which are completely commercial entities. In practice, this cooperation means that a customer has constant access to all copyrighted works in the frame of Europeana but this access is paid. This is the only solution acceptable for right holders in Europe. This solution works in most European countries as concerns access to the repositories of most newspapers. 3

4 3. Lack of territorial restrictions limiting access to works. Book publishers acquire licenses for languages, not for territories, so when a Polish publisher owns the rights to a book in Polish or a translation into Polish, he/she can then permit sales of the work all over the world without any further procedure or collective management. This creates a further advantage to a fully voluntary, negotiated solution where authors (if they have recovered the rights) or their publishers can permit works they have once published to be made available on the Internet, to all EU users and even worldwide. 4. The role of cooperation between cultural institutions and private operators such as Google to make works accessible online. In Spain, digitisation will be done thanks to the support of Telefonica, the national telecoms operator. In the book world, we favour a multitude of actors rather than just one. Once more I will quote Helga Truepel's report: EP stresses that the digital library must not depart from its prime objective, namely to ensure that the dissemination of knowledge on the Internet is not left to private commercial firms, in order that the digitisation of works does not equate to a stranglehold on Europe s public heritage that results in the public domain being privatised. I may add myself that I cannot imagine that any European institution gives advantage to only one private firm (regardless how rich it is), neglecting all others. It was shown many times that the privileges given to Google might easily lead to kind of a monopoly. 5. Orphan and out-of-print works and public domain content available online. This solution is based on due diligent search for orphan works in the country of publication and on renewed support for ARROW, which will facilitate the identification of the status of works, negotiations with right holders for out-of-print works and the ingestion of commercial offers within digital libraries such as Gallica or Enclave in Spain to permit the browsing of works that are commercially available. It is important to note that for out-of-print works, the author or publisher who would permit access via a library would want his/her moral right to be respected. To summarize: copyright law is still the base for the culture funded by private investments. To open the access to all contemporary content online, including copyrighted works, would mean a shift from private investment to financing culture from state sources. At the same time it would mean the destruction of the whole cultural business, as is taking place in the case of education in Norway. Digitisation seems to be an inevitable future the proper question remains when all books will be digitised and not whether they will be digitised. But what is truly at stake is the mass of books available on the Internet. If they are still under copyright, licenses must be obtained from the rights holders. The work is only one, regardless of whether it is print on paper, on CD (audiobook) or if it is available online (E-book) and this work still needs the same protection. The lawmakers should be extremely careful, as far as orphan and out-of-print works are concerned, as their status is not obvious very often and databases of such works are only beginning to function in most European countries. In many others, they do not exist at all and need to be created. The process of digitisation though inevitable needs time and should not be done in a hectic way, especially as concerns legal solutions. During this 4

5 inevitable process we should not lose the main advantages of the culture in which we have been living. Thank you for your attention. 5