The Future of Copyright: Digitisation and Fair Use in the Digital Millennium

Abstract: Fair use is a doctrine native to the U.S., but is with the introduction of the internet more than a decade ago now informally applied worldwide. It has become a potent tool for the digitisation of classic content, such as books and music. In a very debated area of law, copyright is now regarded not as a promotional tool for intellectual endeavours, but as a brake block obstructing the development of society. The discussion in this thesis departs from why fair use is important and possibly vital to society, and if the American doctrine could be implemented in Europe. The boiler plate is Google Books which serves as a good example on both why the doctrine of fair use is desirable and how such a project could be exempted under European instruments. Google Books now contains more than a million digitised books and serves as a gigantic card catalogue and library. Economically speaking, Google creates revenue from books that were previously regarded as "dead" - orphaned or without a clear license holder. Human rights-wise, Google creates immense intellectual possibilities in providing something similar to a library, accessible worldwide. Google was sued for copyright infringement in the U.S. but settled the case before any of the fair use questions were properly answered. However, it is probable that the case would have survived a fair use scrutiny. As regards the European statutes on copyright, the chances of a case such as Google Books prevailing in Europe is examined with the conclusion that, even though national differences in the implementation of exceptions to copyright, Google would with most probability not survive. The adoption of the Info-Soc Directive in combination with the Berne Convention provides an exhaustive list of requirements if an exception to copyright should be allowed which is not flexible enough for projects such as Google's. The exceptions are also implemented differently in each Member State which further complicates the matter. However, policies seems to be changing in the European area with new cases favouring digitised content. And with the E.U. Commission realising the potential of such a project in Europe, the winds may be changing in favour of internet users worldwide.