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In European regulatory discourse as well as copyright research, there is a debate whether the US Fair Use model is better suited to deal with innovation in general and digital challenges in particular than the European system of exceptions. It makes sens to discuss the state of the art of research on Fair Use in the US and what we can learn in Europe.

In the course of a visit in Europe, Pamela Samuelson from UC Berkeley Law School & School of Information gave an interesting talk about “Fair Use in Europe? Lessons from the US and Open Questions”. Her main message could be summarized in two points: First, flexible regulation such as the US Fair Use clause is better suited to rapid technological changes than the comparably static system of exceptions and limitations in European copyright. To illustrate this point, Samuelson mentioned several innovations such as scholarly data-mining in Google Book Search (Ngram Viewer)* or Brewster Kale’s “Wayback Machine” that would have been much more difficult to realize without the Fair Use exemption.

Second, Samuelson explicitly did not recommend to get rid of or avoid specific exceptions all together; rather, keeping limitations and exceptions that provide legal certainty would be desirable even when introducing some form of fair-use-like clause into the European copyright system.

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The first large scale private attempt to both resolve the problem of orphan works and at the same time create new revenue models in the market for books has failed. This week, Circuit Judge Denny Chin rejected the Google Book Settlement in an 48-page-long ruling (PDF). Whether an approval of the so-called “Google Book Settlement” would have been for the good or the bad was highly controversial (see “Pamela Samuelson on the Future of Books in Cyberspace“) and the related discussions have not been futile. The whole Google Books controversy highlights the opportunities and dangers of all-embracing and essentially private regulatory frameworks for the access to books in the digital age (see “Angry Librarians: The eBook User’s Bill of Rights“).

Many blogs specialized on IP issues have immediately started to discuss the short- and long-term consequences of this decision so that for an general overview I just recommend some of these postings:

Grimmelmann is the only one of these commentators that also briefly mentioned the international dimension of the ruling. He summarizes as follows: Read the rest of this entry »

Books are the most traditional of all copyrightable works. Copyright as a legal institution was developed particularly for protecting authors and publishers of books. Over the years, copyrights have been granted to creators of all kinds of works, ranging from music over films to software. While most of these other types of copyrighted works are strongly affected by new forms of content production and distribution in the course of the so-called “digital revolution”, books seem to have been relatively immune to the very same technological changes – at least until Google started with the mass digitization of books and Amazon launched its increasingly popular e-book-reader “Kindle” (see “Google Books and the Kindle Controversy: Merging Conflict Arenas?“).

Especially Google Book Search (GBS) has inspired intense controversies between supporters, painting the highly optimistic picture of universal access to all books ever published for virtually everybody, and adversaries, fearing the rise of a knowledge monopolist, who exploits authors, publishers and readers alike. The best and most comprehensive comparison of both lines of argumentation I have encountered so far is a recent piece by Berkeley’s Pamela Samuelson titled “Google Book Search and the Future of Books in Cyberspace” (PDF).

After identifying overly restrictive copyright as the major impediment for any mass digitization project, Samuelson turns to the pros and cons of the GBS settlement in its current, amended version. As optimistic predictions she lists the following: Read the rest of this entry »

The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
September 2019
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