A bit of History
In 1709 the first statute passed to protect the content of books was passed. This was soon followed by protection for engravings and lithographs as the technology of the day moved on. The legislators have been playing catch-up ever since, as they have tried to keep up.
Sound recording was protected in 1911. It was quaintly called ‘mechanical copying rights’ when the rules were introduced. This protection was ‘rushed in’ some 20 years after records became available. The history of providing protection to sound recording illustrates the complexities involved in providing copyright protection.
Film was protected in 1956 and software gained statutory protection in 1985. In 1996 data gained a measure of protection as the whole business of intellectual property was tidied up and all electronic formats recognised as potential publications. Now the rules are sufficiently general that the creator is assumed to own the copyright from the outset.
Various conventions have evolved to introduce international respect for the rules applied by other national legislators. In Europe and the US copyright of a work now extends for 70 years after the year in which the author dies. There are many special provisions for works published before the 70 year rule was agreed, but 70 years is now the de facto standard.
However, the typographical arrangement of a text is only covered for 25 years and it is a matter of debate if an artist who contributes a cover design enjoys the shorter or the longer protection. There are special rules covering translations which extend for 50 years after the translator dies.
Public domain and ‘Fair Use’
Public domain and fair use are very different concepts and are often confused. A matter is said to be in the public domain if the facts are known to members of the general public. However, the media in which the information was published continues to enjoy copyright protection.
In Europe there is the concept of ‘fair dealing’, which only permits work to be quoted for the purposes of review, research and criticism. This is a much narrower definition that that of ‘fair use’ which is a US concept which derives from the First Amendment to the American Constitution.
In the US, fair use includes the use of work in education and considers whether the original work is being used for commercial gain, and the impact that its use has on the copyright owner. The Book Search and Library project sponsored by Google relies on the provisions of ‘fair use’, as defined in the US, for their project to work.
The book scanning debate
With modern scanners capable of digitising 2-3,000 pages an hour, the international heritage that is confined within the covers of a book could become accessible to digital searches if firms such as Google get their way. Many of the contracts for these books were signed before the advent of computing technology and the copyright issues this raises have yet to be resolved.
There are two issues. Should the copyright owner have to give their express permission? Is the digital version a separate entity? If it is, the person with the digital copy might at some stage choose to exercise some rights of their own and could in theory use the copy for purposes other than searching. So is the digital version is some sense a separate copyright entity?
There is no problem with data systems holding data about a book. Publishers are already obliged to make that information available, as this is at the core of their role as disseminators of information. The book searchers, such as Google or Amazon, argue that they are simply extending the data they hold about a book by scanning the entire contents. Why settle for a summarised contents page or index, when the technology can pinpoint what you want within the text?
So the legal issues surrounding copyright remain the subject of active debate as the technology opens new possibilities. The legislators are entitled to some sympathy as they struggle to keep up.
This article is based around a talk given by Adrian, Laing of Adrian Laing & Co at the London Book Fair in March 2006
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