Books – will Google get a deal?

Could 2012 be the year that Google’s book digitisation project is finally abandoned? In March this year the search engine suffered a setback when New York judge Denny Chin belatedly ruled that the proposed settlement would effectively reward Google “for engaging in wholesale copying of copyrighted works without permission”.

Google has tried to rescue the deal, but the sticking point seems to be over whether it can accept an opt-in system. If not, there is little chance of a new deal being struck. In July this year Denny Chin grew increasingly impatient , pointing out that the dispute has now been going on for six years.

The dispute has also brought to the fore the question of what to do with orphan works – those where the owners cannot be traced. Whatever happens to Google Books, 2012 could see some progress on this specific issue. The new Registrar of Copyrights Maria Pallante has said that book digitisation and orphan works are a priority . The EU laid out the proposal for a directive in June this year, and the UK government has also published proposals to deal with the issue.

Staying in the EU, the Court of Justice is to rule next year in the dispute between SAS Institute and World Programming after questions were referred by Mr Justice Arnold in the High Court of England & Wales last year. Advocate General Yves Bot has already stated that that the functionalities of a computer program are dictated by a specific and limited purpose and are therefore similar to ideas.

In the UK, Meltwater lost its case in the Court of Appeal in London this year, which means that a lower court ruling that headlines and web links taken from newspapers’ websites are protected by copyright still stands. The ruling has caused confusion over the rules for infringement and hearings on the dispute at the UK Tribunal will be closely watched. Meanwhile, the Meltwater case is heading to the Supreme Court, with a hearing expected in late 2012 or early 2013.

Controversy over book digitisation has also spread to Asia. Chinese authors heavily criticised the Google Books deal in October 2009 and forced Baidu to remove copyright infringing works earlier this year. They will also be making their voices heard as the government consults over possible amendments to the country’s Copyright Act – a process that began in July this year .

Music – collecting societies in the spotlight

Decisions of the Canadian Copyright Tribunal have led to a spree of Supreme Court cases . Five cases were heard by the Court in December, four of which dealt with issues of concern to the music industry, including the crucial question of what constitutes a telecommunication to the public. The outcome of all five cases (the fifth concerns copyright excerpts of textbooks for use in school) will be closely watched by all copyright owners. The country may also finally pass a copyright reform bill in 2012 , after years of failed attempts.

Back in Europe, 2012 will be an important year for copyright collecting societies. In September they had their chance to tell Europe’s General Court why they should not be forced to offer cross-border services for collecting and distributing royalties for music. Sabam, the Belgian collecting society, is also seeking to impose a levy on ISPs to obtain compensation for illegal downloading. In the UK collecting societies will have to deal with calls for a code of conduct – whether compulsory or voluntary.

Javed Akhtar

In India composers, lyricists and radio stations have been tearing their hair out for years over the inadequacies of the country’s copyright system and the actions of the two collecting societies: Indian Performing Rights Society and Phonographic Performance Limited. Bollywood lyricist Javed Akhtar – listed among Managing IP’s 50 most influential people this year – has been particularly effective in drawing attention to the injustices in the system and in lobbying for reform. Attempts to get reforms to India's Copyright Act through parliament failed last week when opposition MPs alleged there was a conflict of interest as the son of Kapil Sibal, the minister of Human Resources Development who is responsible for the Bill, acts as a lawyer for Super Cassette Industries – a leading player in India’s music industries. Copyright owners will be hoping for progress in 2012.

Film and broadcasting – all eyes on ISPs

Next year, broadcasters will be looking closely at how the UK courts apply the Court of Justice decision that that national laws or contractual restrictions that prevent the use of decoder cards for receiving football broadcasts are incompatible with the EU Treaty and anti-competitive. Although pub landlords initially celebrated that decision, it may not be as much in their favour as they first thought .

Fans of sport and copyright can also look out for an interesting decision coming out of Australia on cloud computing. The case pits mobile retailer Optus against an alliance comprising its rival Telstra, the Australian Football League and the National Rugby League. Optus is offering customers of its handsets a service that records free-to-air broadcasts and streams them to their mobiles on a time delay of as little as two minutes. Aussie sports fans are delighted. Telstra, which paid A$153 million ($153 million) to AFL for internet distribution earlier this year, is not amused.

That case is likely to be appealed to Australia’s High Court, which will also rule in 2012 on the iiNet case , which will help set the tone for the Australian leg of the global battle between ISPs and content owners (led by the film industry).

Other legs of the battle include South Korea, France and New Zealand, where the effectiveness of differing versions of three-strikes systems for repeat offenders will be closely analysed. But the centre of the ISP liability debate remains the US. It is still not clear who will emerge the winner of the battle between the content owners and the ISPs and technology companies over how to deal with online copyright infringement.

To use an analogy from Star Wars, which featured in another high-profile case this year , both sides see themselves as the Rebel Alliance fighting the Evil Empire. The ISPs and technology companies, led by Google, see nothing wrong with the status quo under the Digital Millennium Copyright Act and think it is up to the content owners to adapt to the new reality. They see no reason why they should police the internet to prop up what they see as outdated business models. The content owners are sick of seeing what they regard as parasites making money of the creativity of artists who are not seeing a penny of Google’s profits.

The battle is being fought in the courts, where 2012 may see a decision by the US Court of Appeals for the Second Circuit in the long-running case between Viacom and YouTube and in the media.

But the most important clash is happening in Congress, where the technology companies are fighting hard to remove the teeth from a series of bills designed to improve enforcement, most immediately the Stop Online Piracy Act (SOPA). Last week opponents forced Lamar Smith, the sponsor of the legislation , to put off a final committee vote on the bill, most likely until 2012.

Our reporter spotted dozens of lobbyists paying line sitters to reserve them a seat in the hearings – a sign of the determination of both sides to win this fight. Next year won’t see an end to this battle, but if they can pass legislation along the lines of SOPA, 2012 could be the year when the US content industries begin to fight back.