GBS: More on the Orphan Works Situation on France

Decent blog post; it’s in French but the online translation tools do fairly well with it.

UPDATE: And more on the situation in Germany.

UPDATE: And a bit on the EU situation.

The reference in the French blogpost to the Canadian legislative approach to unlocatable copyright owners sent me to the excellent paper (in English) by Bernard Lang “Orphan Works and the GBS - an International Perspective”, which in turn sent me to the Canadian Copyright Board (CCB)’s webpage on unlocatable copyright owners. S.77 of the Canadian Copyright Act allows the CCB to provide licences for the use of the in-copyright work for which the copyright owner cannot be found. The CCB’s decisions are on the webpage: 242 licences granted since 1990, 7 declined. I glanced at a couple of the reasons for declining licences: one application was declined because the planned use was not substantial enough to require a licence. The other was declined because there was no evidence that the work (photos) had previously been published.i.e. in both cases no licence was needed.

On the face of it, this seems like a good solution to the orphan works problem. So where is the Canadian debate about the effect of the GBS on Canadian Copyright Law?

There are particular issues for GBS 2 with respect to works published in French in Canada.

GBS 2 has been (falsely) represented as having been narrowed to “English-speaking” countries. That isn’t true in many cases — the UK has, for example, one of the world’s largest largest Arabic publishing industries — but the problem is perhaps most severe with respect to Francophone Canadian publishing. Montreal is the second-largest city in the Francophonie, and a major cultural and literary center. Canada has the world’s second-largest volume of French publishing after France itself. But the sole token Canadian representatives added to the named plaintiffs is, I believe, Anglophone. The original notice was published for only a single insertion in a single Francophone Canadian publication. And the supplemental notice is in English only.

Lynley said: “So where is the Canadian debate about the effect of the GBS on Canadian Copyright Law?” In a letter dated September 22, 2009 to me by the Minister of Canadian Heritage and Official Languages, the department responsible for copyright policy, the Honourable James Moore (Conservative),states in part:

I appreciate being advised of your concerns [regarding the Google Book Settlement]and have noted your comments with respect to this matter. The Google Book Search settlement is voluntary, which means that authors who believe the settlement is fair can remain in. If right holders feel it is nat fair or the removal of books by Google would be effective, they are entitled to opt out and would retain their right to make a claim against Google in court for damages caused by the digitization and publication of their book on-line. The matter is still before the United States of America courts and the Canadian government is closely monitoring the situation for any developments.

In other words the copyrights of Canadians are not worth defending.

In an email [108] to me July 21, 2009, the New Democratic Party’s Canadian Heritage and Official Languages critic, Charlie Angus states in part:

I have published five books and two of them have been digitized through Google books. Initially I was somewhat concerned when I first found out that the publisher had placed these books on Google. Since then I have come to the conclusion that the availability of the work will lead to more people being interested in searching out the actual books for purchase. I recognize issues will need to be worked out as this process of digitization grows nonetheless, it may prove to open new fields of research for researchers. I respect that you [have] a different perspective. Thank you for making me aware of your concerns. As both Google and the University of Wisconsin have removed your book from their listings I consider this matter closed.
Mr. Angus, there is a great deal of difference between being a willing participant in Google & Company’s digitization program and having your work pillaged by them!

The Liberal critic for Canadian Heritage and Official Languages, the Honourable Pablo Rodriguez has never replied to my emails. However, my Member of Parliament, the Honourable Geoff Regan (Liberal) has wrote letters of support on October 23, 2009 to the University of Wisconsin as well as to the Honourable James Moore. I have received a reply to the letter from the University of Wisconsin, but as yet have not received a reply from the Minister of Canadian Heritage and Official Languages, the Honourable James Moore. Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

The Canadian Association of University Teachers (CAUT) has filed an objection to the Proposed Amended Settlement Agreement (PASA) with the court.

CAUT advances five arguments in support of these objections:

  1. The PASA puts the United States in violation of international intellectual property law and specifically in violation of trade agreements among Canada, the United States, and other parties as those agreements relate to copyright.
  2. The PASA wrongly singles out Canadians for inclusion amongst the Author sub-class. The Canadian copyright regime is distinct from American copyright law in ways that will implicate Google and potentially the Book Registry in liability for copyright infringement in Canada, particularly with respect to Canada’s legislative provisions in respect of moral rights and its licensing scheme for unlocatable copyright owners (what Americans call “orphan works”), neither of which have correlatives in US law.
  3. The PASA’s inclusion of Canadians in the Author sub-class is wrong for a second reason: the PASA does not account for the reality of Québecois and Canadian French-language authors among the Author sub-class. Québec, unlike other Provinces and Territories of Canada, is a civil law jurisdiction, and commercial dealings with copyrighted works reflect what we call a civilian view of the author. The PASA has generated a great deal of discontent among French language authors and CAUT’s Québec members.
  4. The Authors Guild and the representative plaintiffs do not fairly and adequately represent the interests of Canadian academic authors in negotiating the PASA. Simply, many Canadian academics would not likely select a mechanism resembling that articulated in the PASA for distributing digital books. Academic authors in general place a higher premium on access than is reflected in the PASA.
  5. The PASA includes minimal privacy protections. The PASA’s inconsiderate treatment of privacy interests is inconsistent with Canadian academic values. More troubling, the PASA’s failure to require privacy guarantees puts the PASA at odds with Canadian privacy legislation and values more generally.

Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me