{"id":19359,"date":"2017-05-25T15:00:00","date_gmt":"2017-05-25T14:00:00","guid":{"rendered":"http:\/\/blog.journals.cambridge.org\/?p=19359"},"modified":"2017-05-25T14:16:38","modified_gmt":"2017-05-25T13:16:38","slug":"debating-copyright-fair-use-at-the-london-book-fair","status":"publish","type":"post","link":"https:\/\/www.cambridge.org\/core\/blog\/2017\/05\/25\/debating-copyright-fair-use-at-the-london-book-fair\/","title":{"rendered":"Debating copyright ‘fair use’ at the London Book Fair"},"content":{"rendered":"
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The 2017 Charles Clark lecture on copyright took place at the London Book Fair on Wednesday 15th<\/sup> March.\u00a0 <\/strong><\/p>\n

It was chaired by Peter Day, the long-serving BBC broadcaster.\u00a0 The two speakers were both American judges: Judge Pierre Laval, who has served on the US Court of Appeal and is a District Judge for New York and Jon Baumgarten, a US copyright lawyer.\u00a0 Although the whole of the lecture was about fair use, their exchange was mainly about the 2014 \u2013 2015 appeal by Google against claims of violation of copyright by various publishers and the Association of American Publishers, which Google won.<\/p>\n

Pierre Laval hit the nail on the head at the outset when he said that a major advantage of the US approach towards appeals is that it gives judges flexibility; but that this is also a disadvantage.\u00a0 The whole debate demonstrated this! He said that part of the difficulty in deciding the Google case stemmed from the \u2018bifurcated nature of copyright\u2019 \u2013 it promotes the enrichment of public knowledge while at the same time it exists to enable authors to make a living from writing.\u00a0 Some time ago, the English courts accepted that author control could not be absolute, and so the doctrine of fair use was born.\u00a0 In many instances, fair use doesn\u2019t harm the legitimate rights of authors: for example, when quotation from the work, perhaps in a review, doesn\u2019t limit the author\u2019s ability to earn revenues.\u00a0 However, the more the author\u2019s exact words are copied and quoted, the more the subsequent work is being offered as a market substitute. The development of digital facilities make this more complicated: in the digital sphere, anything one does involves making a copy; but digital copying can be extremely valuable for information purposes.<\/p>\n

Google Books proposed to make digital copies of millions of books without their authors\u2019 permission; but they placed these on the Internet only when they had permission from the rightsholders.\u00a0 By using search engines, the searcher can find very little direct extract from these books; hence, Judge Laval concluded, Google is not offering substitutes for books.\u00a0 Searches yield only 2 \u2013 4 lines of text, and only then if the rightsholder allows it.\u00a0 The extract allows the researcher to see just enough of the book to decide whether it is of interest.\u00a0 Judge Laval finished by saying that the Google programme gave authors and readers gigantic benefits, but did not seek to produce substitutes of the books: \u201cGoogle is not an enemy, but a friend\u201d.<\/p>\n

Judge Baumgarten began by saying that he didn\u2019t think the publishing community considers fair use to be the enemy: it was the publishing community that chose the concept of fair use with respect to unpublished works.\u00a0 However, he contended that some of the basic principles of fair use had been undermined by Google Books.\u00a0 Google was flying a \u2018false flag of credibility and authority\u2019.\u00a0 Ongoing and future mass digitisation projects will use the Google Books Supreme Court ruling (which of course found in favour of Google) as an authority.\u00a0 \u201cTrade associations must discover, pre-empt and counter them.\u201d<\/p>\n

The Google Books ruling was not sui generis, but a \u2018one-off\u2019. The requirement to opt out, rather than opt in, to a publication programme turns the law on its head.\u00a0 It hinders the development of collective licensing. Copyright law is predicated above all else on production rights.\u00a0 Fair use should not enable unauthorised copying; courts should not discount the harm done by the unauthorised copy. \u2018Enterprise copying\u2019 is far outside the sense and spirit of fair use.\u00a0 There have been other instances in the US where the copying of entire works has taken place, but nothing on the scale of the Google Books initiative. Whether or not the application of fair use was \u2018transformative\u2019 was a key issue in the Google case: reproduction rights in American law are conspicuously not founded on a requirement that copies be financially exploited.\u00a0 Therefore, the \u2018no harm\u2019 conclusion in the Google Books case may be unwarranted: Google Books probably did undermine commercial opportunity, even though Google obtained no direct financial gain.<\/p>\n

Judge Baumgarten pointed out that Judge Laval agreed that it was necessary to look at what sort of copying was used and whether it interferes with the author\u2019s market.\u00a0 Rightsholders have an absolute monopoly, according to what the licensing law gives them.<\/p>\n

This was a riveting debate, not least because the more persuasive of the two judges \u2013 Pierre Laval \u2013\u00a0 defended the intuitively shakier moral argument.\u00a0 Most of the audience probable agreed with Judge Baumgarten\u2019s stance; but they went away with a greater understanding of the points of law that enabled Google to win.<\/p>\n

A full transcript of the debate is available here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The 2017 Charles Clark lecture on copyright took place at the London Book Fair on Wednesday 15th March.\u00a0 It was chaired by Peter Day, the long-serving BBC broadcaster.\u00a0 The two speakers were both American judges: Judge Pierre Laval, who has served on the US Court of Appeal and is a District Judge for New York […]<\/p>\n","protected":false},"author":79,"featured_media":19418,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2251],"tags":[217,726,45],"coauthors":[],"class_list":["post-19359","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-librarians","tag-academic-publishing","tag-copyright","tag-open-access"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/19359","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/users\/79"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/comments?post=19359"}],"version-history":[{"count":0,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/19359\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media\/19418"}],"wp:attachment":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media?parent=19359"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/categories?post=19359"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/tags?post=19359"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/coauthors?post=19359"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}