Mass Digitization in the eBook Market: Copyright Protections and Exceptions

Abstract

This chapter examines the mass digitization of the publishing industry which traces its roots to around 2007 with the release of the first Kindle e-reader by Amazon. Because the publishing industry was a later entrant into the digital marketplace than some of the other content industries (for example, the music, movie and television industries), it has only more recently started to deal with issues relating to the appropriate scope of copyright protection in digital content and the application of key copyright exceptions such as fair use and first sale to digital initiatives such as the creation of online coursepacks for study and research purposes, digital fanfiction, and library lending of digital books. Caselaw has emerged over the last decade in the United States, the Court of Justice of the European Union, and a number of national courts in Europe about the application of copyright law and policy to new digital initiatives in publishing and downstream sale of eBooks. While few clear principles have emerged, at least none that are globally harmonized, the recent judicial determinations and associated debates provide useful food for thought for legislators concerned with future developments in publishing. It is important for legislators to watch and learn from these current disputes, so that appropriate legislation might be enacted if, and when, necessary in a given segment of the industry. In some ways the lack of global consensus as to the application of copyright law in a number of digital publishing scenarios is a benefit to the development of appropriate legal principles, as it provides an opportunity for a form of international arbitrage in which national legislatures and courts can learn from other countries’ experiences in emerging copyright areas.