The Google Book Search Battle – a Global Issue

(IPRinfo 2/2010)
Niklas Bruun
Professor, Director, IPR University Center

The digitization of books by Google has raised a huge debate and many concerns even outside the US borders.

The reason was that the settlement reached in 2009 was actually made in a way that meant world wide application. In the amended settlement the scope has been narrowed down to books published in English in the USA, Canada, UK and Australia. This restriction, however, does not make the settlement less global.

We are now setting the rules of the game for global e-libraries, and Google will certainly be an influential player far beyond these countries. Furthermore, English is the dominating language for academic science and research. Academics all over the world want to contribute in English books published in these four countries.

It is, therefore, important to follow the Google process. It has been most appropriate that even actors like the French and German governments have raised their concerns about the current development.

More than 10 million books scanned
Google has taken two major steps in order to establish the leading e-library of the world. The first was to scan millions of books from the libraries of some major universities. The aim has been to index their contents, make snippets available to potential readers, and make non-display uses to refine Google’s search technologies. All this happened without any consent from the authors whose books were scanned.

In October 2009, more than 10 million books had been scanned, mainly by the Google Library Program, where Google made agreements with about 30 leading libraries about scanning their collections.

The second step was to try to settle the lawsuit that was brought against Google for copyright infringement. Google, naturally, wanted to commercialize the books it had scanned.

The big battle concerns this settlement. It was made between the Authors Guild (8000 members) and some major publishers that had responded to Google´s book scanning project in September 2005 by bringing a US class action law suit to challenge the scanning as a copyright infringement.

Rightholders have not been united
The law suit was settled in October 2008. The parties agreed that Google would pay a sum (60 USD/book) to the copyright owners whose books they had scanned for a license to commercialize out-of-print books.

The rightholders will get paid from the revenues brought by this commercialization. A new collective society, Books Rights Registry, will be established with funds created by the implementation of the settlement.

One advantage for Google has been that the rightholders have not been united. Both publishers and authors claim that they own the e-book rights. The authors are of the opinion that this use was not foreseen when the original assignment was made and therefore copyright stays with the author.

The publishers dispute this interpretation and claim the rights. The settlement actually contains a compromise: the authors of the books published before 1987 get 65 per cent, whereas for books published later the division is 50 per cent each.

The settlement met with strong criticism. An amended settlement was negotiated in November 2009. Foreign, i.e. non-U.S., rightholders became now excluded with the exception for UK, Canada and Australia. The agreement introduces a fiduciary to be appointed to represent the interest of authors to unclaimed books and to control the use of the revenues owed to these rightholders. Also, some of the pricing mechanisms where changed in order to make it more difficult for Google to misuse its future monopoly on e-library market.

Settlement not yet approved
In spring 2010, the case is still pending in the District Court in New York before judge Chin. The amended settlement has to be approved in court before the system can be implemented. The District Court has to decide whether the settlement as amended is ”fair and reasonable and adequate” as to the class that would be bound by its approval.

On 18 February 2010, the District Court conducted a hearing where those supporting or opposing the amended settlement were allowed to speak out. The hearing gave a good overall picture of the arguments.

The main supporters of the settlement are, not surprisingly, the parties to it (Google, the Authors Guild and some main publishers) and the libraries that have allowed the scanning of their books in return of free licenses to use the Google digital library for 25 years. Some disabilities groups are also in favor of the agreement since Google has promised to make books available in a format useable to the blind.

The objectors represented a long list of speakers. Interestingly enough, both the US government (Justice Department JD) and the French and German governments were represented at the hearing together with many representatives for big corporations starting with Microsoft to organizations like the Electronic Frontier Foundation.

The orphan works should not be privatized
The representative for the JD was extremely critical over the settlement. He argued that the settlement was not the appropriate vehicle to achieve the important objective of mass digitization. He argued that the settlement goes much beyond settling a legal dispute. Instead, it actually is a series of forward looking commercial transactions which bear no nexus to the underlying issue in this case of Google´s ”fair use” defense as to the producing snippets of digitized works.

He also argued that the whole procedure is a misuse of the class represented in this case: millions of authors and publishers around the world. He also stressed, as did many other objectors, that several issues at stake in this case should be left to the legislator since they are legislative matters. These include the use of orphan works and compulsory licensing.

The representative for the German government underlined that although foreign authors to a large extent are excluded from the settlement, many foreign authors have been registered in the U.S. Copyright Office.

Moreover, German and other foreign authors and publishers are generally not permitted the membership in the Authors Guild and the Association of American Publishers. The settlement will provide Google with an exclusive license to use orphan works, which will prevent any competing digital libraries in Europe to use them.

Opt-in rule instead of opt-out rule
She also argued that the proposed settlement is contrary to the Berne Convention and the World Copyright Treaty (WCT) since it creates a de facto registration requirement and is based on an opt-out rule. The settlement covers all authors who do not take action to opt-out from it. Instead, she argued, it should be based on an opt-in rule.

A thorough opposition for academic authors was presented by Professor Pamela Samuelson, University of California Berkeley. In addition to the above mentioned concerns, she raised further issues on users’ privacy in the new system, on the monopoly pricing for subscription of licenses from Google in the future, and the issue of censorship risks. She concluded that the settlement cannot be regarded as ”fair and reasonable ” from any other point of view than that of Google´s.

Digitization of books is a global issue
The Google settlement is a global issue. It concerns authors all over the world.The authors participating in the class action cannot be regarded as representing them all.

The settlement also raises interesting international private law issues. How will European courts assess the agreements in court claims where the applicable law is the law in the United States? Will it be disregarded as being against ”public order” since it does not respect the fundamental principles of the Berne Convention?

The outcome of the Court procedure will be interesting. It is difficult to think that this project – with its important aim to make books largely available – would fail completely. On the other hand, it is even in an American environment difficult to imagine that the restoration of the cultural heritage of mankind would completely rest with one private corporation. The issue must also be dealt with on a global level.

 

 

Share: