Another Chapter in the Copyright Debate

Many kinds of creative content are protected by copyright including books, plays, songs, newspapers, adverts and films. Copyright does not have to be registered or applied for – it is granted as soon as the work is created and takes tangible form. For the copyright’s term, the rights holder has the exclusive right to allow or to refuse its use whether that is by reproduction, public performance, broadcasting, adaptation or translation.

Against this background, there is a development of potentially Earth-shattering consequences to the world of books and authors.

In 2005, some of the most powerful and best known authors and publishers in the US filed a class action lawsuit against Google. The cause was Google’s recently introduced Book Search programme which aims at digitalising and making available vast numbers of in-print and out-of-print works, whether or not they are still covered by copyright.

The authors and publishers claimed that Google was wilfully infringing copyrights in their books for its own commercial purposes, to drive visitors to its websites and to increase its advertising revenues. In particular, they argued that Google had not sought prior permission to use the copyrighted works and had copied their works in blatant disregard of their objections.

Recently, there have been attempts to settle that lawsuit. However, the nature of a class action lawsuit is that it has very broad effects, extending even to those who did not participate in the original lawsuit. Settlements of class action lawsuits need to be approved by the court hearing the lawsuit. The approval process is underway, and a final approval of the settlement could occur as early as June 2009.
From a European perspective, three aspects of the proposed settlement raise concerns:

o The first is that it authorizes Google to copy and distribute in the US not only books by US authors and publishers, but also books written and published in Europe. This circumvents one of the most fundamental principles of copyright law, namely that actual permission needs to be obtained from the rights holder before the work is used. It also raises issues of fairness, since European rights holders did not participate in negotiating the proposed settlement. Although rights holders technically may opt out of the proposed settlement if they act quickly, few European authors and publishers are likely to do so simply because they are largely unaware of the proposed settlement or how it could affect their rights. Even if European authors opt out, Google has not provided any promise that it will not scan and distribute their books.

o Second, the proposed settlement gives Google extensive rights to copy and commercially exploit so-called ‘orphan’ works – i.e., works that are within their term of copyright but with respect to which the rights holders cannot be located. How to make orphan works widely available to the public, while protecting the rights of authors, has been the subject of intense policy discussions both in the EU and US. The proposed settlement would effectively pre-empt those discussions and grant Google, a private commercial enterprise, the exclusive ability to exploit those orphan works.

o Third, if this proposal is sanctioned and put into effect, it will give Google such a powerful, unassailable and exclusive position in relation to online book services that it would be impossible for any other entity – public or private – ever to undertake the same exercise. This would give Google a lasting monopoly over the key delivery mechanism for books in the future, including in Europe.

These are issues that lie at the heart of how we use copyrighted works in the Internet age.
International issues relating to intellectual property have traditionally been dealt with through international bodies such as the World Intellectual Property Organisation (http://www.wipo.int), a specialised agency of the United Nations. It is an open question whether the issues described in this blog should involve such agencies, or could better be dealt with by national legislators.

Nevertheless, it seems indisputable that a development of such magnitude as the proposed Google Book Search settlement agreement should not simply be left to the commercial parties to that dispute. At the very least, European Governments and the European Institutions need to consider these issues and whether to intervene in the court proceedings alongside the representatives of European publishers and authors – even if only to plead for more time to evaluate the potential effects of the settlement on European authors, publishers, consumers and culture.

With best regards,
David Wood, ICOMP Legal Counsel