Posted by : Peter Wienand
| Date posted : 30/11/2011
Last week, the European Commission published a Memorandum of Understanding (“MoU”) in relation to the availability and mass-digitisation of “out of commerce” books and learned journals which it had facilitated between organisations representing libraries and also publishers, authors and collecting societies.
The Commission’s website tells us that in 2009 EU and EEA book publishers sold €23bn of product, 515,000 new titles were issued and these publishers held 6.5m titles in stock. In 2009, the largest markets in terms of turnover were Germany, UK, France, Spain and Italy. In the UK, the digital publishing market, which stands at £180m, is now 6% of the combined physical and digital sales of UK publishers.
Out of commerce books, which used be called “out of print works” are still protected by copyright but authors and publishers have decided to withdraw them as they have no financial interest in maintaining them in the usual commercial channels. This is to be contrasted with “orphan works” where the owner of the copyright cannot be traced to obtain their consent for commercialisation. In this regard, the European Commission has proposed a Draft Directive on the Use of Orphan Works, which we reported on in our June 2011 briefing, to enable the digitisation and online availability of orphan works. These two initiatives together are part of the European Commission’s strategy to create a comprehensive framework for copyright in a digital single market.
The new out of commerce books MoU was agreed between: the European Writers' Council (“EWC”); the Federation of European Publishers (“FEP”); the European Publishers' Council (“EPC”); the International Association of Scientific, Technical and Medical Publishers (“STM”); the European Bureau of Library, Information and Documentation Associations (“EBLIDA”); the Conference of European National Librarians (“CENL”); the Association of European Research Libraries (“LIBER”); the European Visual Artists (“EVA”); the European Federation of Journalists (“EFJ”); and the International Federation of Reprographic Rights Organisations (“IFRRO”). Clearly, this project deals with the interests of the full spectrum of interested parties in the book and journal sector.
The main purpose of the MoU is to allow European libraries to pursue their public interest function in mass-digitising and making available online vast numbers of such out of commerce books and journals. The European Commission explains that an MoU is less prescriptive than the adoption of new legislation and in fact it is the copyright owners who have the right to decide if a library can or cannot digitise a work. It is now up to the parties to negotiate mutually acceptable terms and conditions and the Commission will monitor how the MoU develops over time.
The MoU sets out the key principles to be followed in licensing mass-digitisation. It is confined to books and learned journals and therefore does not extend to other print materials, films, games and music. The out of commerce status of a work is to be decided in the country of first publication of that work using criteria agreed by the parties. Similarly, the voluntary licensing agreements under the MoU are to be negotiated in the country of first publication.
We now wait to see how successful this project will be in terms of the future availability of works online which might previously have been lost to the world.
If you require further information on anything covered in this briefing please contact Peter Wienand (peter.wienand@farrer.co.uk; 020 3375 7355) or your usual contact at the firm on 020 3375 7000.