Online copyright

The New Zealand Society of Authors, in seeking the intervention of the Government in a difficult issue of online copyright involving the internet giant Google, has entered a complex and far from conclusive argument which, until the internet was invented, was a relatively simple matter in law.

Before the computer age, the Berne Convention, a copyright treaty still in existence, protected the use of an author's work by another agency without consent and most, but by no means all, governments were party to it.

Many an author found their books were being republished in other countries and were not being paid royalty fees - especially in countries previously behind the "iron curtain", notorious for this practice, as was (and still is) communist China.

Complaining about it proved futile.

Today, online publishing is all too often the villain in a similar practice, with original work frequently copied in whole or in part, without any sign of a copyright fee being paid.

It is regarded by authors and publishers as theft, plain and simple.

The music industry, especially the popular music branch, has been trying to stop the practice for some time, with very limited success.

Many think the borderless online "community" is entirely without rules or moral conventions; indeed its strongest advocates champion absolute freedom from any controls whatsoever.

And, as the music industry in particular has discovered, the moment one copyright thief is shut down, another site is opened.

The allegation by the Society of Authors, however, has a far broader and more powerful target to challenge in Google, but it may have left its case far too late to have any realistic chance of success.

Google is - and plans to continue to - publishing digitised books, effectively copying the texts and posting them on the internet, without the permission of the authors, let alone the payment of fees, although it has copied many New Zealand authored-books.

The company has so far added about 10 million works to its "Books Search" database, the majority being out-of-copyright; non-copyright books can be read without fee, only extracts are available from those still under copyright.

The company plans to start charging for e-books online.

American writers whose books were being copied by Google sued the company for copyright infringement and achieved an out-of-court settlement worth many millions to copyright holders whose books were digitised without their consent.

Google will continue to be able to use that material, but only in the United States.

However, the Society of Authors believes that if a book is not generally available for sale in the United States, even though it is widely available elsewhere, it is considered by Google to be "out of print", and Google believes it can display excerpts without consent.

Authors and publishers around the world have until Friday to decide whether to "opt out" of the "Google Book Settlement"; that is to say they can request that Google not digitise their books, although the company is evidently under no legal obligation to agree, and if it does breach copyright, the rights-holder's only recourse will be to sue in the United States.

Opting in to the settlement will mean copyright owners could receive a (small) share of the fund, but their work could continue to be posted online, though only in the United States at this stage.

Google's plans are far from being realised, and may yet founder as the realisation grows among writers and legal experts outside America of its full implications.

An American court is reviewing the scheme and it will determine whether it can proceed.

Several objections, including from Google's digital rivals, have been filed and the United States Government is examining the scheme with competition laws in mind.

In this country, the Government and various committees are still wrestling with what the concept of intellectual property might mean in economic terms, and the apparent near-conclusion of the Google proposal, which has been in existence for five years, raises rather urgently the pertinent question of cross-boundary copyright.

It also raises the issue of the role of libraries, because Google has gained "partnership agreements" with 29 large university libraries, as well as publishers, to copy online their holdings, mostly non-fiction, published before January this year.

Natural justice requires the Government to at least attempt to answer the Society of Author's inquiry about whether the Google settlement in fact overrides the New Zealand copyright laws, and if so, what it proposes to do about it.

Some form of author's lending right as is provided here for books held by libraries might be a suitable framework for resolution, if one is required.


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