International Report (January 2004)
By RICHARD POYNDER
The U.K. has passed new legislation that extends legal deposit to electronic publications. The Legal Deposit Libraries Act 2003, which became law last October, provides a legal framework for ensuring that electronic media is systematically collected as part of the published national archive.
The new law will cover a range of electronic publications, including electronic journals, publications on media other than paper (e.g., microfilm or fiche), and hand-held electronic publications on media such as CD-ROM or DVD. The British Library will also preserve elements of the Web by selectively harvesting from the nearly 3 million Web sites that have a .uk suffix.
The aim is to put electronic publications on the same footing as print publications. This will ensure that they remain an important resource for future generations of researchers and scholars. Since 1911, U.K. publishers have been required by law to deposit one copy of every publication—including newspapers, books, and documents—with The British Library and up to five with the other U.K. Deposit Libraries.
The legal deposit of electronic publications will build on work already begun by a voluntary scheme that was introduced in January 2000 and is administered by the Joint Committee on Voluntary Deposit. The JCVD, which includes representatives from the legal deposit libraries and four of the main publisher trade bodies, has already saved many nonprint items.
“This is a historic piece of legislation and puts the U.K. among the first countries which will be collecting, by law, their electronic published output,” says Lynne Brindley, chief executive of The British Library. “This has been achieved by interested parties working together successfully to clear all the major legislative hurdles.”
Publishers are less upbeat, arguing that since they were unable to comment on the final draft, there remain many uncertainties over implementation. “There are still some practical issues to resolve, not least because the government department involved only revealed the draft legislation very late in the day, to the fury and exasperation of the library and publishing sectors,” says Anthony Watkinson, a JCVD member.
“There are all sorts of questions still to be answered,” agrees Andrea Powell, product development director at Oxfordshire-based CABI Publishing. These include “the rules governing what use can be made of deposited versions, whether we need to deposit e-publications with all the current deposit libraries, what types of publications are covered by the legislation, what formats are to be used, and so on.”
In fact, it will likely be several years before the new law is fully implemented, as the act is only “enabling legislation.” As such, it provides a framework for subsequent, secondary legislation. This will take the form of a series of regulations to be introduced over time.
When and how these regulations are introduced will be influenced by a new Advisory Panel that consists of government representatives, publishers, and the deposit libraries. It will recommend specific regulations for different publication types to the Secretary of State for Culture, Media, and Sport.
It’s expected that the initial regulations will address offline publications, since there’s general agreement that archiving online publications will pose a more significant challenge, particularly when it comes to dynamic Web sites and online newspapers. Commenting on the Association of Learned and Professional Society Publishers’ Web site, ALPSP CEO Sally Morris points out that these “raise many more intractable problems,” including how they are deposited and the “legal and other liability issues relating to the content.”
For this reason, says British Library spokesperson Bart Smith, Web archiving activities will be “entirely voluntary” and will only proceed with the agreement of rights owners.
How many of the estimated 3 million U.K. Web sites are likely to be preserved? “The library anticipates that approximately 1,250 sites might be ‘captured’ and made available by 2004/05,” says Smith.
To preserve those sites that have already disappeared, Smith adds, The British Library is considering the purchase of relevant subsets of historical data from the Internet Archive, a nonprofit organization that has been archiving the Web since 1996.
A number of other countries are also in the process of extending legal deposit law. In Germany, new legislation has been drafted to cover all types of material. Finland introduced legislation last March that extends legal deposit to Web sites (existing legislation already included other electronic material). Norway and Denmark have similar schemes and are actively collecting digital material, including Web sites.
Elsewhere, New Zealand enacted legislation last year, and the French government has issued a directive to ensure that its national library will collect all electronic material.
It seems that in the world of trademarks—as in many areas of life—those who live by the sword risk dying by it.
Last year, for instance, Google’s lawyers dispatched letters to a number of Web sites—including the lexicographical site The Word Spy—objecting to the use of the word “google” as “a verb synonymous with ‘search.’” The letters insisted that sites attach a trademark notice when using the word.
In October, however, the company found itself on the opposite side of the table when two French travel agencies—Luteciel and Viaticum—successfully sued Google France for trademark violation. The lawsuit followed Google France’s refusal to curb the use of trademarked terms in its AdWords program, which permits individuals and companies to have their advertisements appear on the Google home page when specific search terms are used.
In particular, the French companies objected to Google’s practice of selling links for the phrases “bourse des vols” and “bourse des voyages” (which roughly translate to “travel market” and “air-flight market”), on the grounds that they own trademark rights in them. They particularly objected to Google selling the links to rival companies like low-cost airline EasyJet.
The Lower Court of Nanterre agreed it was a violation and ordered Google France to pay the travel agencies $82,557 in damages. In making its decision, the court took the view that when searches are done on registered trademarks, Google should “find the means to block advertisements by third parties who have no right to these trademarks.”
The ruling was immediately hailed as a landmark decision, and commentators predicted a wave of further litigation from other companies. Indeed, Vuitton, a division of French luxury goods giant LVMH and maker of handbags, shoes, and other luxury items, has already filed suit against Google on similar grounds.
Google declined to answer any questions on the French ruling. “As this is an ongoing legal matter, we are unable to provide further comment,” said Debbie Frost, Google’s international PR manager. However, she stressed that the company will be appealing the Nanterre decision.
Danny Sullivan, Internet consultant and editor of Search Engine Watch, believes that the French ruling has raised questions about the legality of the search system at the heart of Google’s business model. Sullivan points out on his Web site that if the ruling were to become a widely accepted legal view, search engines “couldn’t sell any word without fear that they might accidentally violate someone’s trademark and get sued.” He adds that this would be particularly problematic in those countries, such as the U.S., where trademarks need not be registered.
Moreover, Sullivan says, it should be a worry for other Web companies. “If the French ruling is upheld on appeal, it will impact Overture, eBay, and any other type of service where paid listings of any type are linked to keywords, at least in that country.”
Conscious of the significant problems it would pose for its future were U.S. courts to take the same line as the Lower Court of Nanterre in France and threatened with similar trademark litigation from Michigan-based interior door specialist American Blind & Wallpaper Factory, Google has asked a district court in California to pre-emptively rule on whether its keyword-advertising policy is legal under U.S. law.
Copyright has become hugely contentious in the digital age, particularly in North America and Europe. In Africa, it’s no less contentious, although the concerns tend to be more traditional.
The problems are perhaps best demonstrated by Kenya’s experience. Above all, there’s the sheer scale of piracy. This has been rampant since the late 1970s and continues to grow at an alarming rate. According to the International Intellectual Property Alliance (IIPA), piracy levels in Kenya now stand at 78 percent, the highest in Africa.
What does this mean in practice? For example, consider music CDs. Between June 2002 and February 2003, Kenya’s Customs & Excise department seized more than 100,000 music CDs coming into Nairobi and another 15,000 in Mombasa. During the same period, the industry reported legitimate sales of just 15,000 CDs.
And it’s not only music. Books, software, and videos are all affected. For instance, a recent survey found that pirated copies of videos such as Harry Potter and The Lord of the Rings are available in Kenya within a week of their release overseas.
In the case of books, literature set texts are the biggest problem. Speaking to The East African last year, Janet Njoroge, chairperson of the Book Publishers Association of Kenya, cited the example of one book that had sold 105,000 copies the year it was published but only 10,000 2 years later—a market failure she blamed squarely on counterfeiting.
In a bid to stem the tide, the Kenyan government passed the Copyright Act of 2001, which went into effect Feb. 1, 2003. The aim is to bring Kenyan law into line with its obligations under international copyright treaties.
IIPA, however, argues that much more needs to be done, both in terms of more effective legal penalties and more rigorous enforcement. For instance, the organization says that when raids are undertaken, they rarely lead to prosecution. When prosecution does take place, the remedies are often ineffective.
Thus, when Microsoft sued a local systems builder for illegally pre-loading business software on hundreds of computers, the court found the defendant liable for damages of $325,310. But he responded by simply “winding up” his company. This left Microsoft with hefty costs but no resolution to the problem, since the defendant is thought to be still operating illegally in the East African market.
Infringement also tends to be blatant and is often viewed as standard business practice. As Njoroge pointed out to The East African, some secondary school heads in Kenya happily sell photocopies of set books. Instead of being reprimanded by the Ministry of Education, however, they are applauded for their “ingenuity.”
The same attitude characterizes the music industry. As Jennifer Shamalla, general manager of the Music Copyright Society of Kenya (MCSK), puts it, there’s a “total disregard by major music users (i.e., the broadcasters)” of the requirement to pay royalties.
Consequently, while the Kenyan radio and television industry earns more than $170 million a year, apart from a small payment from the Kamene FM radio station, “not a cent has trickled down to MCSK,” says Shamalla.
In short, a culture of ignorance and indifference, coupled with the continuing inadequacy of legal remedies, makes it almost impossible to enforce copyright. Even those organizations charged with ensuring that royalties are paid are often riddled with corruption and tribal rivalry. For instance, when Shamalla took the job of MCSK manager in 2000, her appointment was strongly opposed on the grounds that she was not from the same tribe as a large proportion of the members.
While inspecting MCSK’s accounts, Shamalla discovered that there were “no accurate records of distribution of royalties, and payments were made on a ‘who-knows-who’ basis.” Indeed, many members were not even qualified to join the organization. When she sought to exclude them, Shamalla was opposed and obstructed. “I have on several occasions been threatened with personal violence,” she says, adding that following the last incident, seven people were charged.
The situation is clearly a source of embarrassment for the London-based Performing Rights Society, as it has two directors on MCSK’s board. The problem, explains Diana Derrick, the PRS agent with responsibility for Kenya, is that members do not always “understand the realities” of the conditions under which MCSK operates, don’t “have a clue about corporate governance,” and cannot “see why tribalism could not be brought into the equation.”
The tragedy, she adds, is that “many of the problems faced by MCSK, and the complaints from some members, would be solved fairly quickly if the broadcasters started paying royalties.” Taking the necessary legal action to ensure this, however, requires money, which MCSK doesn’t have. As such, Derrick says the organization is in a “Catch-22 situation.”
Piracy in Kenya, then, is so ingrained and solutions are so hard to arrive at, that the situation appears all but irrecoverable. For this reason, IIPA has recommended that the U.S. put Kenya on its “Special 301” watch list. Tragically, while this would damage Kenya’s trade with the U.S., it would likely have little impact on piracy, certainly in the short term.
This article has been reprinted in its entirety from the January, 2004 issue of Information Today with the permission of Information Today, Inc., 143 Old Marlton Pike, Medford, NJ 08055. 609/654-6266, http://www.infotoday.com.