GBS: The Berne Ultimatum

At the request of the Open Book Alliance, lawyer Cynthia S. Arato has written an 18-page memorandum on the international copyright issues raised by the settlement. Arato represented groups of foreign publishers in filing objections to the settlement, so her bottom line is unsurprising:

If approved, the settlement would (1) grant Google automatic rights to exploit digitally millions of books without requiring Google to obtain any authorization from any foreign copyright owner or author; and (2) require these foreign rights holders to jump through burdensome hoops simply to exercise a watered-down contractual right – that the settlement creates – to halt such use. As we explain below, that unprecedented usurpation of copyright owners’ rights would violate two fundamental provisions of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention” or “Berne”) – the protection of copyright owners’ exclusive rights and the prohibition against imposing formalities that would impair the exercise of those rights. In addition, the settlement would violate the principle of non- discrimination enshrined in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”). It would do so by imposing many of its most burdensome provisions on foreign rights holders who are not nationals of the United Kingdom, Canada or Australia – three countries whose nationals are unfairly given special treatment under the settlement.

These general arguments are not new. But the memorandum format lets Arato write for a slightly broader audience than in her legal briefs. She has also filled in more details of these particular objections and added citations to additional authorities. It’s an immediate must-read for those following the international-law issues in the settlement.

The GBS (and other similar schemes) are not compatible with the Berne convention precisely because they are not copyrights.

Copy-right is an individual right of control of usage and the most fundamental of all individual rights is the right to say no.

Guilds are medieval. The GBS is a sort of privatized right to collect a tax/levy, awarded to a very unrepresentative group.

The real question, to which I’ve found no answer, is why this memo has been produced now… any thoughts?

good question, perhaps the attempted

“unprecedented usurpation of copyright owners’ rights “

by unrepresentative collective groups is getting a bit sharp all around the common law world?