The Authors Guild, Inc. et al v. Hathitrust et al

Filing 90

DECLARATION of Louise Hedberg in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Fred Ruiz, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
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Index No. 11 Civ. 6351 (HB)

DECLARATION OF LOUISE HEDBERG
I, Louise Hedberg, hereby declare as follows:
1.

I am the Director of Sveriges Författarförbund (The Swedish Writers’ Union)

(“SFF”), one of the plaintiffs in the above-captioned action.
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
3.

SFF is a non-profit organization with its principal place of business in Stockholm,

Sweden. The SFF, first organized in 1893 as the Swedish Association of Authors, has more than
2,750 professional writers and translators as its members and is the leading organization for book
authors in Sweden. In pursuit of its mission of securing its members’ rights to reasonable
remuneration and working conditions, the SFF negotiates standard, minimum-terms agreements
with book publishers, radio and television broadcasters, film producers and others on behalf of
authors and translators. The SFF also defends freedom of expression and of the press by
safeguarding the principles of the Swedish Freedom of the Press Act.

FKKS: 460930.v1

19894.300

The Works At Issue
4.

Upon information and belief, Defendants have digitized without authority many

books by SFF members (the “SFF Works”), including at least one work by author Erik
Grunstrom, who is the former Vice President of SFF and a plaintiff in the instant action.
Harm Resulting From Defendants’ Use Of The Works
5.

The SFF agreed to join this lawsuit as an associational plaintiff after learning that

print copies of SFF Works and millions of other copyrighted books were digitized and being
used as part of the Google Library Project, and that Defendants planned to begin making digital
copies of purported “orphan works” available for free.
6.

I have reviewed the declarations of T.J. Stiles and Erik Grundstrom, who are

authors and plaintiffs in this litigation. I agree with and incorporate by reference the description
in those declarations of the various harms and potential harms that result from Defendants’
unauthorized digitization and use of copyrighted works. Those descriptions need not be repeated
here in full, but can be summarized as follows.
7.

First, each digital copy of an SFF Work that is created by Defendants without

purchase or license represents a lost sale to the associated rightsholder. Defendants could have
purchased a copy but instead had it scanned without compensating the copyright owner. SFF
itself administers digital reproduction rights on behalf of many of its members, and SFF works
closely with collecting societies in Sweden that manage the rights to thousands of additional
works.
8.

Second, Defendants’ storage of the SFF Works in an online digital repository

exposes that property to security risks for which the rightsholders receive no commensurate
remuneration. Unauthorized access to copyrighted books leading to widespread piracy would

2

gravely impact the market for those works. Although the Swedish market for electronic books is
relatively undeveloped, there has recently been an immense amount of activity in this field, with
authors, publishers, booksellers and libraries each making significant investments to optimize
their relative position in the market when it finally emerges in full force. Hence, the risk of a
project like HathiTrust causing a disturbance to the emerging markets for electronic books in
Sweden is particularly troublesome.
9.

Third, Defendants’ various uses of the SFF Works undermine various licensing

opportunities for rightsholders. For example, authors in Sweden routinely grant publishers the
right to display one or two chapters of a book in order to promote sales of the book. Defendants’
full-text search feature is comparable, but in that case there is no license and the service is not
part of an effort to sell the books and provide revenue to the author. Defendants also permit the
books to be used for non-consumptive research, an emerging field that represents another
potential licensing stream for authors.
10.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements. For example, the National Library of Sweden entered into a memorandum of
understanding (“MOU”) with the SFF and the Swedish Publishers Association with the goal of
creating a digital library that would make all works published in Sweden available to the public.
The primary focus was on digitizing out of print works and works that had not yet been digitized.
Rights would be cleared through an extended collective licensing agreement. The MOU
contemplates that in exchange for granting rights to the National Library, authors would receive
a set amount per work digitized, along with a copy of the digital file. A copy of a presentation
summarizing the terms of the MOU in English is attached hereto as Exhibit A. Defendants have

3

undertaken similar activities as those discussed in the MOU, but they have not agreed to
compensate authors for the use of their works or to provide any of the protections contained in
the MOU.
11.

Fifth, making books available through the Orphan Works Project will directly

undermine efforts to revive out of print books and will impact future sales of such books.
12.

In short, Defendants activities have harmed or have the potential to cause

enormous harm to the rights of authors.

[THIS SPACE INTENTIONALLY LEFT BLANK]

4

EXHIBIT A

Jerker Rydén
Chief Legal Adviser
National Library of Sweden

2011-03-31

”Sweden’s Digital Library”
Sweden s
Library
–
ECL a flexible model
of rights clearance
f i h
l
and making available

www.kb.se

AG 0004404

•

–
–
–
–

The Swedish Writers’ Union,
The Swedish Publishers’ Association,
The National Library of Sweden and
The Visual Arts Copyright Society in Sweden.

www.kb.se

The following Parties have signed a MOU concerning the digitization of the
Swedish literary heritage:

The Parties

AG 0004405

The National Library of Sweden must receive increased financial resources
resources,
through both private and state initiatives.

•

www.kb.se

Cooperation with representatives for other right holders and producers.

•

all books published in Sweden should be made accessible
on-line to the public,
free of charge for the readers

The Extended Collective License [ECL] is the best means to solve the copyright
related issues.

–
–
–

The ambition is to create a digital library

•

•

Principles

AG 0004406

The best way to adapt the making availability of the Digital Library is for the Parties
to negotiate an agreement [ECL] and modulate such an agreement when needed.

•

AG 0004407

Access to the digital library will have to be adjusted. Conditions will vary from time
to time.

•

www.kb.se

The major focus will be to provide access to digitized books that are not available
in print or have not been issued as an E-book.

•

Out of Commerce

To make the books available for research and educationally purposes

But also in the interest of the general public to make the culture heritage of
Sweden available to as many as possible

The Parties agree that the Digital Library can provide a legitimate service where
the market oriented publishing ends

•

•

•

www.kb.se

The National Library will digitize the books and provide access to them on the
Internet

•

Different roles

AG 0004408

Additional financial means will be necessary

Both private as well as government initiatives
initiatives.

Public Private Partnership will be essential to realize the digital library

•

•

•

Financing

www.kb.se

AG 0004409

Gives the National Library a right to digitize and make the works in question
available to the public via a web page.

Remuneration – a symbolic sum of one SEK/work and the digital file.

One purpose with the project – two identify obstacles and to define the roles of the
stakeholders i a f t
t k h ld
in future ECL as well as f t
ll
features conducive f mass di iti ti
d i for
digitisation
and making available

•

•

•

AG 0004410

A non-exclusive license for a period until a new ECL provision is introduced in the
Copyright Act, and an agreement is concluded. However, the period will be at most
three years
years.

•

www.kb.se

A pilot project with a selection of Swedish poetry prose and magazines
poetry,

•

”The F ti ”
”Th Forties”

•

•

prohibition against the use of their works.

individual remuneration on the basis of the law

–

–

www.kb.se

Give th t k h ld
Gi the stakeholders an opportunity to assess the commercial value of the work i
t it t
th
i l l
f th
k in
question,
and the time to take necessary actions to put the work on the market, i.e. make the work
commercially available

Opt-Out

–

–

Transparency / Heads Up

Features conducive for mass digitisation
and making available

AG 0004411

•

www.kb.se

AG 0004412

when an agreement has been concluded concerning the exploitation of works pursuant to
specific articles in the Sw. Copyright Act
with the organization that is most representative for, and best represents, the authors of
the works in the field concerned that are being exploited in Sweden
Sweden.

The extended collective license confers to the user the right to exploit works of the
kind referred to in the agreement despite the fact that the authors of those works
are not represented by the organization (extendedcollective li
t
t d b th
i ti ( t d d ll ti license effect).
ff t)

–

–

• An extended collective license applies

ECL

www.kb.se

Therefore it would also apply to manuscripts etc that has been donated by the
rightsholder to the library with the intent that the material should me made
available to the public

•

digitise works in their collections and
make them accessible on the Internet

The new provision does not rely on the material being previously published or
otherwise previously made available to the public.

–
–

A new provision to the Sw. Copyright Act enabling libraries and archives to

•

•

AG 0004413

To digitise works in library collections and make them
accessible on the Internet

•

–
–
–

–

www.kb.se

when an agreement has been concluded in accordance with the conditions set out in
the previous slide and relating to other exploitation of works and
the agreement relates to exploitation within a limited and well defined area,
the ECL effect is a precondition for the exploitation, and
the agreement is in writing and contains information that the agreement is intended to
have an extended collective license effect.

An extended collective license applies also:

A special extended collective
license

AG 0004414

•

•

facilitate rights clearance in connection with various forms of mass use of works and
g
performances protected by copyright so as
to make the great repertoire available in organised form and
on terms that are acceptable to the users, authors and other right holders. See
http://www.wipo.int/meetings/en/2010/wipo_cr_lic_ge_10/program.html

www.kb.se

The EU and many national governments have been encouraging national libraries
to enter into Public Private Partnerships (PPP) to facilitate the large scale
digitization of the each library’s Corpus.
library s

–
–

–

The Special ECL aim to

The Special ECL & PPP

AG 0004415

Both the library as well as the private partner in these endeavors will need a
license to disseminate the content.

The Special ECL will be instrumental to enable PPP
PPP.

•

•

www.kb.se

These efforts are extremely costly, so the participation of a private partner is, in
most cases, a prerequisite.

•

The Special ECL & PPP

AG 0004416

individual remuneration on the basis of the law

–

www.kb.se

AG 0004417

The agreement is by law made binding on non-represented rights holders. But non
represented right holders have a right to:

•

prohibition against the use of their works.

CMO and users conclude an agreement on the basis of free negotiations.
g
g

•

–

Collective Management Organization (CMO) is representative

•

Important!

•

–
–

without the possibility of receiving individual claims from ”outsiders” or
p
y
g
having to face criminal sanctions

An agreement allows to legally use all materials,

Important!

www.kb.se

AG 0004418

•
•
•

•
•

www.kb.se

Issue: The model is flexible and future-proof
Rights-holder
Rights holder organizations negotiate with users the conditions for a particular use
of works
Agreement applicable to all right holders, even if they are not a member
Possibility for "opt out”
+: Both exclusivity and contractual freedom are respected

Out of Commerce - ECL

AG 0004419