IP, Technology & Data

You may be aware that since 2004 Google has been digitising books. You may also be aware that not everybody is delighted about it.

It’s pretty hard to find a decent, snappy round-up of the Google Books story, and some bright spark somewhere is probably writing a dreary tome entitled “The Google Books book” right now. However, just to prove how efficient and clever we are here at Brodies, I’m going to sum up the whole saga in under 500 words.

Starting now.

Google claims that since 2004 it has scanned at least 7 million books. These books are variously out of copyright, still under copyright, commercially unavailable or, in many cases, “orphan works” with no known copyright holder. Despite Google employing a variety of access restrictions, and only showing snippets from the copyright works (with a few pages around a searched-for term or phrase), the project has been very unpopular with writers and publishers who believe that it infringes their rights.

In the US the Authors Guild and the Association of American Publishers filed a class copyright infringement suit in 2005. At the end of last year Google proposed a settlement which is currently under consideration by the US court. Under the settlement Google has offered to pay 125 million dollars to resolve outstanding claims and establish an independent “Book Rights Registry” which will provide revenue from sales and advertising to authors and publishers who agree to digitise their books. Thanks to the peculiarities of US class action law, if this settlement receives US court approval it will apply automatically to the entire US books industry.

However the objections are numerous! Some authors want an opt-in system, rather than an opt-out (the problem being this would leave the “orphan works” in limbo). Publishers are concerned that Google will have a monopoly over the index and over commercially unavailable works. Civil liberties campaigners highlight the privacy risks of Google being able to monitor your reading. Other objections have come from Google’s competitors in the search business, including Microsoft. And Germany has recently announced its opposition, arguing that the settlement violates international treaties on authors’ rights because it would be easy to get round restrictions on non-US access to the index.

In Europe, Google is facing a different set of copyright laws in each country, with little harmonisation. Differing rules at national level are hampering cooperation. What is out of copyright in Germany may still be protected in France. The European Commission has started hearings on how it should respond to the deal. The Commissioners are attempting to formulate a response and will report to the European Parliament and the Council with their findings.

Supporters of the single market would like the EU to formally back the US deal and devise a similar pan-European legal instrument to promote the digitisation of its cultural heritage. Opponents point out that harmonisation of EU copyright laws could take decades, that a single US company should not be trusted as a repository of European culture, and that a deal with Google would cut European companies out of this emerging market.

On 7th September European Commissioners held an open meeting to discuss the effects of the Google Book settlement agreement on the European publishing sector, European authors and European consumers. The result was that Google proposed to offer scanned books to Europe’s publicly funded digitisation initiative “Europeana”, and also offered two positions on its proposed Books Rights Registry to European representatives.

(For the record, that was 492 words. At Brodies we always like to come in a bit under our quote – and crucially, with the job also done.)

So that’s all the reporting, but what is my personal opinion?

Firstly I don’t believe that Google is doing all this for the greater good, no matter how cuddly its marketing makes the company appear.

Secondly I think the EU has to take some sort of action regarding book digitisation or we’re going to end up with a dearth of online European knowledge.

Thirdly, Europeana is hugely underfunded.

All of which leads me to the conclusion that the EU is going to have to do some sort of deal with Google. A check on what might rapidly become a digital books cartel will have to be agreed. It may be that Google’s business model is the most effective check of all. Google’s business is fundamentally based around search and it’s going to be in Google’s best interests to make sure books are available to be searched.

IP and Technology

Brodies offer the market leading technology, outsourcing and information law practice in Scotland, delivering up-to-the-minute, commercially-focused, relevant specialist knowledge to clients operating in every sector of the Scottish economy. Find out more at http://www.brodies.com/legal-services/ip-technology-outsourcing
IP and Technology