Looking Beyond the Google Settlement: How to Best Manage the Rights of Authors and Publishers

New York, Feb. 10, 2011—With the settlement of the Google Books lawsuit still yet to be approved, the focus has shifted to how best to ensure that authors’ and publishers’ rights are protected when their works are digitized and made available online.

 

The Google settlement calls for creation of a Book Rights Registry, which would license authors’ rights to digitize books and make them available, unless an author opts out. The registry, a form of a collective management organization (CMO), would make licensing more cost-effective and eliminate the need to seek copyright clearance on a work-by-work basis.

 

Even if the settlement is not approved, some people argue that Congress should create a copyright exception or a compulsory license to enable the creation of a digital library, with a CMO to represent authors’ and publishers’ interests.

 

How CMOs work and whether they are the best solution for the large-scale exploitation of copyrighted works was the topic Jan. 28 at the annual symposium of the Kernochan Center for Law, Media, and the Arts at Columbia Law School.

 

The symposium explored the advantages and disadvantages of using CMOs to enable large-scale exploitation of copyrighted works, particularly for Internet-related uses like digital libraries,” said June Besek, the Kernochan Center’s executive director. “We hope that it will generate broader and more informed discussion about the potential role of CMOs as well as consideration of other alternatives.”

 

As the discussions revealed, CMOs can make licensing easier in theory, but questions about whether they conflict with international treaties, whether they fully protect authors’ rights, and whether they should be compulsory highlight some of the potential obstacles to their wider use.

“Global use requires global licensing,” said Tracey Armstrong of the Copyright Clearance Center.

 

Despite all the hurdles that must be overcome, there was wide agreement that participating in some form of a CMO was better than losing revenue from Internet uses. As Eugene Mopsik, executive director of the American Society of Media Photographers noted, the Internet can make just about anyone a publisher.

 

“It is far easier to right click and infringe than right click and buy,” Mopsik said. “It frequently seems that everyone has made money off of photographs except for the photographer.”

 

The U.S. does not have much history with CMOs, with the exception of music-licensing organizations such as BMI and ASCAP, which senior vice president and general counsel Joan McGivern said licenses 8.5 million songs. That task has been “enormously challenging” in the digital realm, she said. ASCAP has been embroiled in rate disputes that have gone to court with such companies as Google and AT&T as it seeks to recover revenue it says its composers are owed for such uses as website streaming and ringtones.

 

“The revenue is flowing to suppliers of technology, builders of networks and sellers of hardware,” and composers deserve their fair share, McGivern said.

 

Yet another issue involves the extent to which CMOs are vulnerable to charges of antitrust violations. However, Columbia Law School Professor Scott Hemphill, a nationally recognized antitrust expert, said that issue is far from settled.

 

“Although antitrust has something to say here … it’s kind of an awkward fit,” Hemphill said.

The full sessions from the symposium can be viewed here.

 

 

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