sexta-feira, março 09, 2007

Copyright must be respected as culture goes online

By Thomas Rubin

Imagine a world in which every book, song, television programme and movie ever created is instantly available online with just the click of a mouse. Such a world would offer enormous promise not only to consumers but to artists and creators as well, who would finally be able to reach audiences that have long been too distant or expensive to reach before.

This amazing new world is almost upon us, thanks to the internet and new digital technologies for scanning and distributing vast libraries of books, video and music. But sharp debate has broken out over how best to realise the goal of such broad online access to the world’s culture without undermining the financial incentives for creativity that are so essential to the development of these works.

Google, for example, says its book search technology will one day make available a copy of every book ever published in a vast online database of indexed content. A worthy goal, to be sure. But in pursuit of that goal, Google has taken a unilateralist approach by contending that it is entitled to grab books off library shelves and copy them wholesale without obtaining the permission of the publishers and authors who own the copyrights in those works.

Google defends this approach on two grounds. First, it contends that its actions qualify as “fair use” under US copyright law – never mind that books are being copied by the truckload and will be accessible in countries that do not even recognise that concept in their own copyright laws. Moreover, most authors and publishers, along with legal experts, disagree with Google’s rather novel assertion of “fair use”. In fact, they (including a subsidiary of Pearson, publisher of the Financial Times) have sued Google over its copying of the millions of books that its library partners – in the US and elsewhere – are making available.

Second, Google makes the claim that it should be allowed to copy and ­monetise the copyrighted works of others without their permission because of the public benefit in creating a vast global online repository. This project may well bring significant commercial advantage to Google. By contrast, those who own the copyrights in these works could gain little or nothing from Google’s plan.

Microsoft and others in the industry believe there is a better approach to achieving that goal and broadening online access to books. It is an approach that seeks to collaborate with copyright holders in developing technologies and business models that not only build a competitive and varied marketplace of online book content, but at the same time nurture the incentives for creativity reflected in copyright law without which no artist or writer – and no society that aspires to a living culture – can thrive.

Microsoft’s approach to book search, for example, is based wholly upon the notion of collaboration with publishers, authors and other copyright holders. With publishers’ voluntary and express permission, we are building a vast repository of books for people to access online. At the same time we are working to create a seamless interface to those digital book repositories that publishers wish to build for themselves. That is their choice and Microsoft respects it.

The dichotomy between these two approaches – collaboration versus unilateralism – is reflected in other areas of online services available today. Nearly every major movie and television company, for example, has expressed deep concern over the large number of infringing videos available on Google’s YouTube website. Google simply denies liability and appears to be trying wherever possible to skirt copyright law’s boundaries. At Microsoft we believe that a better approach to developing online video-sharing sites is to work in an open and transparent manner with content owners to minimise infringement, while at the same time licensing and offering a wide range of high-quality content that consumers can reliably locate and enjoy.

In no way do I want to minimise the challenges ahead, nor the flexibility and willingness to experiment that will be needed if we are to build a truly sustainable ecosystem of broad online access to the world’s cultural works. But we cannot succeed in meeting these challenges by cutting legal corners and ignoring the rights of copyright holders. Rather, the technology and content industries should continue to work together to create consumer-friendly solutions that nurture rather than undermine the incentives for creativity so vital to sustaining our culture.

The writer is associate general counsel for intellectual property at Microsoft Corporation