Balancing Copyright Protection and Intellectual Property Rights in the Digital Age

REDMOND, Wash., March 5, 2007 — Technological advancements have allowed content such as books, songs, television programs and movies to be digitized and made available on the Internet. Tom Rubin, an associate general counsel for Copyright, Trademark and Trade Secrets at Microsoft, is scheduled to speak Tuesday (March 6) at the Association of American Publishers (AAP) Annual Meeting in New York City about Microsoft’s position on the important issue of copyright protection and intellectual property rights related to digitized content. PressPass spoke with Rubin to get additional information on Microsoft’s stance:

PressPass: What is Microsoft’s position on how to give people broad online access to this material without infringing on the content owner’s rights?

Tom Rubin, Associate General Counsel, Copyright, Trademark and Trade Secrets, Microsoft Corporation

Rubin: Digitizing all of this content is important because it not only creates opportunities for publishers to reach new customers, but it exposes more people to a wider variety of content. However, there is a critical debate taking place about how to best realize the goal of broad online access to the world’s culture without undermining the incentives for creativity that are so essential to developing these works in the first place. There is one side that takes a unilateralist or “opt out” approach where the practice is to simply to “take” the works of others, without any regard for copyright or the impact of their actions on authors and publishers. Microsoft doesn’t believe that is the right approach. We firmly believe that expanding access to online content must be done in a way that respects intellectual property rights and fairly compensates the content creator for their work. It’s an approach that seeks to collaborate with publishers and copyright holders in developing technologies and business models that seek to build a competitive and varied marketplace of online book content. The challenge here – for all of us – is how best to balance the worthy goals of access, innovation, and creativity.

PressPass: Does Microsoft have a plan for solving these issues?

Rubin: We think that three simple principles can help the industry make the right choices. The first principle is that new services that expand online access to content should be encouraged. The second principle is that those new services must respect the legitimate interests of copyright holders; put conversely, we must forcefully reject any business model that is based on the systematic infringement of copyrights. The third principle is that, even as we adhere to these first two principles, we must all work together to find consumer friendly and cost-effective solutions to our shared goal of expanding online access to copyrighted and public-domain works.

I don’t want to minimize the challenges we face, nor the flexibility and willingness to experiment that is needed to build a truly sustainable ecosystem of broad online access to the world’s culture. 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 find consumer-friendly solutions that nurture rather than undermine the incentives for creativity that are so vital to sustaining our culture.

We’re thrilled that the AAP has come out in support of these principles this week (see sidebar quote), and we’re looking forward to further engaging with that group and others in the industry to help drive these principles forward.

PressPass: Having a vision is a start, but does Microsoft have any specific projects related to book search?

Rubin: Microsoft currently has two publication-focused search products in test, or “beta” form right now. The first, Live Search Academic, focuses on scholarly books and journals. The second, Live Search Books, focuses more broadly on books of general interest.

Our Live Search Books initiative has two content sources. The first is our Library program, which involves scanning only books that are out of copyright or otherwise in the public domain. In connection with the program, we are currently scanning out-of-copyright books at partner libraries such as The British Library, the University of California Libraries, Cornell University Library, the University of Toronto Library, and The New York Public Library. The second source is our Live Search Books Publisher Program, under which we receive books still under copyright from publishers with their express permission, either in digital form directly from the publisher, or scanned from hard copy. Participating publishers have access to an online site – or dashboard – that enables them to manage their publications on Live Search Books. They can choose the amount of text that a reader may preview, create click-to-buy links next to their books, edit metadata, and so on.

Several major publishers have signed on to the Live Search Books Publisher Program. Others, however, prefer to offer their own digital repositories of their books. For this latter group, we’ve been working with those publishers and the AAP to develop a seamless interface between Live Search and those repositories.

Microsoft also participates in the Book Industry Study Group, which is working to improve interoperability across digital repositories and search engines, so that consumers can easily search a huge body of works, while letting copyright owners retain control over their content.

PressPass: How, though, do you combine the projects mentioned above with the business realities that many publishers and authors face?

Rubin: It’s such an important point. We must all work together to be flexible and seek cost-effective solutions to our shared goal of expanding online access to copyrighted and public-domain works. The current system, frankly, presents important challenges that will need to be addressed if the promise of online access is to be fully and fairly realized. This will require all stakeholders to seek flexible, practical solutions that support a competitive, healthy, and varied marketplace of access to online content. No one said it would be easy, but it’s important for content owners and technology companies to work together and invest in the resources needed to overcome obstacles and realize this great opportunity.

PressPass: Can you provide specifics on how Microsoft is thinking about this?

Rubin: In order to promote innovation and online access, we need to figure out ways to reduce transaction costs of negotiations between online service providers and copyright owners. We also need to preserve the benefits of the Internet’s global reach. While online service providers must be mindful of the territorial rights of publishers, we all need to recognize that enforcing these rights in an online environment adds enormous complexity and cost. We need to work together to reach solutions to this problem that are simple and efficient.

Additionally, we need to address the “orphan works” issue, an important issue that I have supported in testimony before the U.S. Senate. Online providers should make diligent efforts to locate copyright owners, but when they cannot locate the owner, there must be a process or a safety net by which they can move forward without risk of liability, beyond payment of a reasonable royalty if the copyright holder later makes herself known. Further, we need to understand and address consumer expectations. For example, most consumers now expect to preview content before they buy it, and this needs to be taken into account in the digital world. Tools for digital rights management and other technical restrictions need to be adopted carefully so that they do not frustrate consumers’ legitimate experiences and expectations. Otherwise, the industry risks losing out on this vast new market.

Finally, all of us need to be open to adjusting our business models to add value for the book customer. The software industry, and especially Microsoft, has three decades of experience of having its IP threatened by the effects of cheap copying technology. We have thrived despite this, in part through strong support of IP, but also through adapting our products and business models and by taking different approaches. This same flexibility will be essential as we move into the brave new world of online books.

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