Google Books and the Nordic Model

Copyright in many countries needs to be adapted in order to permit mass digitization of the world’s cultural heritage without denying authors and right holders fair remuneration.

On March 22, 2011 the Uni­ted Sta­tes Dist­rict Court of New York announ­ced (pdf) that it did not appro­ve the Goog­le Books Sett­le­ment. With its long-awaited deci­sion the Court has sent the con­tro­ver­si­al sett­le­ment betwe­en Ame­ri­can copy­right owners and Goog­le regar­ding the mass digi­tiza­tion of some twen­ty mil­lion libra­ry books, back to the drawing-board. 

The Sett­le­ment has its origins in a class action copy­right inf­ringe­ment suit brought by the Ame­ri­can Aut­hors Guild and the Ame­ri­can Pub­lis­hers Associa­tion (APA) against Goog­le in 2005. A class action, it should be noted, con­cerns not just the par­ties of the case but an enti­re class of plain­tiffs — in this case: all aut­hors and pub­lis­hers of the mil­lions of books digi­tized by Goog­le. As the copy­right owners alleged, by digi­ti­zing the enti­re book col­lections of some of the lar­gest uni­ver­sity libra­ries in the world, and making ‘snip­pe­ts’ of digi­tized text avai­lab­le through the Goog­le search engi­ne, Goog­le inf­rin­ged the copy­rights of mil­lions of aut­hors and thou­sands of pub­lis­hers. Accor­ding to Goog­le how­e­ver all this amounted to fair use.

Surprising settlement caused storm of criticism

In the cour­se of 2008 and 2009 par­ties came to an agreement, the so-cal­led Goog­le Books Sett­le­ment (‘GBS’) . To the sur­pri­se of many, the sett­le­ment far exce­e­ded the sco­pe of the court case, and perm­it­ted Goog­le not only to digi­tize books and dis­play ‘snip­pe­ts’, but also to com­mer­cia­lize mil­lions of out-of-print works, by sel­ling down­loads, e‑books and insti­tu­tio­nal sub­scrip­tions. Thus from the Goog­le Books class action case aro­se what can be easi­ly cal­led the lar­gest book licen­sing deal in the world, bin­ding not only Goog­le and its direct adver­sa­ries (the aut­hors and pub­lis­hers repre­sented by the Guild and the APA), but inn­u­merab­le for­eign aut­hors and pub­lis­hers as well.

A real Goog­le book! (photo: Ruben Ver­me­ersch. CC: by-nc-nd)

Not sur­pri­sing­ly, the GBS cau­sed a storm of cri­ti­cism, first and fore­most by for­eign pub­lis­hers who com­plai­ned that they had been left out of the deal and that their copy­rights were severe­ly com­prised. At the Frank­furt Book Fair of 2009, Ger­man Chan­cel­lor Ange­la Mer­kel pub­licly warned against the con­se­quen­ces of the Sett­le­ment for Euro­pean pub­lis­hers. Over four hundred offi­ci­al objec­tions were even­tual­ly sub­mit­ted to Jud­ge Chin of the New York Dist­rict Court, who was cal­led to appro­ve the sett­le­ment. Apart from the for­eign right hol­ders’ pro­te­sta­tions, the con­cerns expressed in the objec­tions reflected a varie­ty of other inte­rests and fears. Accor­ding to many, inclu­ding Micro­soft, Ama­zon and even the Ame­ri­can Depart­ment of Jus­tice, the GBS would result in a Goog­le mono­po­ly on the online sale of digi­tized out-of-print books. Scien­ti­fic aut­hors pro­te­sted that the GBS would allow Goog­le to com­mer­cia­lize scien­ti­fic works that many aut­hors pre­ferred to make avai­lab­le for free under open-con­tent licen­ses. Some objec­tors also pointed to the pri­vacy risks of a com­pany like Goog­le con­trolling online access to the world’s literature. 

Future scenarios for Google Books

On the other hand, the GBS did rece­i­ve pub­lic sup­port from the uni­ver­sities that had ente­red into libra­ry digi­tiza­tion agreements with Goog­le, such as Stan­ford and Michi­gan, and from infor­ma­tion spec­ia­lists and scien­tists who were excited by the pro­s­pect that the world’s lite­ra­tu­re would soon become avai­lab­le online. Some aut­hors and author’s rights socie­ties also sup­ported the Sett­le­ment, for it inclu­ded a pro­mi­se by Goog­le to pay sub­stan­ti­al royal­ties to the aut­hors of digi­tized books.

In the end, more than a year after con­duc­ting a pub­lic hea­ring, the Dist­rict Court deci­ded against the Sett­le­ment. Quo­ting many of the con­cerns expressed by the objec­tors, the Court deter­mined that the Sett­le­ment is not ‘fair, rea­so­nab­le and adequa­te’, as Ame­ri­can law requi­res, and refu­sed to appro­ve the GBS in its pre­sent form.

Does the deci­sion mark the end of Goog­le Books, the lar­gest book digi­tiza­tion pro­ject ever under­ta­ken — often descri­bed as the Bibliot­heca Alex­and­ri­na of our time? Seve­r­al futu­re sce­na­rios are possible. 

One option is appe­al. Goog­le and its coun­ter­parts might take a second chan­ce at get­ting the GBS approved, by appea­ling the judgment. How­e­ver, deci­sions like these are rar­ely over­tur­ned, par­ti­cu­lar­ly if they are as well-rea­so­ned as Jud­ge Chin’s deci­sion seems to be.

Anot­her pos­si­bi­li­ty is that Goog­le and the right hol­ders aban­don the sett­le­ment alto­gether and resu­me the court case from which the GBS sprang. Iro­ni­cal­ly, this would pit Goog­le once again against its for­mer foes that beca­me its best fri­ends in the cour­se of the Sett­le­ment: the Aut­hors Guild and the APA. Who might even­tual­ly pre­vail in this suit is a mat­ter of spe­c­u­la­tion. But even if Goog­le would succe­ed in having its ‘fair use’ defen­se accep­ted by the court, this would never allow Goog­le to make its digi­tal books col­lection avai­lab­le online, except by way of ‘snip­pet view’.

A more like­ly sce­na­rio would be revi­sion of the Sett­le­ment. A main con­cern for many objec­tors to the GBS was its ‘opt-out’ rule. Aut­hors and right hol­ders of out-of-print works who had not express­ly opted out of the Sett­le­ment would be bound by it. As a con­se­quen­ce lar­ge num­bers of unk­nown right hol­ders, such as the heirs of long-dead aut­hors of out-of-print works, would be auto­ma­ti­cal­ly bound by the GBS, giving Goog­le a mono­po­ly in the mar­ket for digi­tized ‘orp­han works’. By amen­ding the Sett­le­ment into an opt-in agreement, the risks of a Goog­le mono­po­ly might be great­ly redu­ced, whi­le perm­it­ting for­eign aut­hors and pub­lis­hers to become involved in, or wit­hdraw from, the agreement.

For Goog­le, how­e­ver, the pro­s­pect of an opt-in agreement is not very attrac­ti­ve. Seeking express perm­is­sion from mil­lions of hard-to-find right hol­ders will ine­vi­tab­ly entail extra­or­di­na­ry transac­tions costs. Alter­na­tive­ly, Goog­le would have to make lar­ge parts of its book data­base una­vai­lab­le to the gene­ral public.

A fourth sce­na­rio would be legis­la­ti­ve inter­ven­tion. Accor­ding to legal com­men­ta­tors, what was essenti­al­ly wrong with the GBS is that it pro­vi­ded for a legal solu­tion of the orp­han works issue — the pro­blem of dea­ling with myriads of unk­nown right hol­ders in an effi­ci­ent man­ner — to the bene­fit of only a sing­le par­ty: Goog­le. Inste­ad, this pro­blem should be solved by way of legis­la­tion, allowing other mass digi­tiza­tion pro­jects — whether by Google’s com­pe­ti­tors or by non-pro­fit insti­tu­tions — to be rea­lized on equal terms.

European and Nordic proposals for solving copyright dilemma

If the Goog­le Books saga has taught us any­thing, it is that the law of copy­right in many countries needs to be adap­ted in order to perm­it mass digi­tiza­tion of the world’s cul­tural her­ita­ge wit­hout deny­ing aut­hors and right hol­ders fair remu­ne­ra­tion. In the Euro­pean Union, whe­re digi­tiza­tion pro­jects such as Euro­pea­na have strugg­led with copy­right pro­blems from their incep­tion, the need for a legis­la­ti­ve solu­tion of the orp­han works pro­blem is now gene­ral­ly rec­og­nized. On May 24, 2011 the Euro­pean Com­mis­sion pub­lis­hed a Pro­po­sal for a Direc­ti­ve (pdf) of the Euro­pean Par­lia­ment and the Coun­cil ‘on cer­tain perm­it­ted uses of orp­han works’. The pro­po­sed direc­ti­ve would obli­ge the Mem­ber Sta­tes of the Euro­pean Union to allow cul­tural her­ita­ge insti­tu­tions and pub­lic broad­cas­ters to mass-digi­tize and make avai­lab­le online any ‘orp­haned’ books, jour­nals, new­spa­pers, films and tele­vi­sion pro­grams in their libra­ries and archi­ves. The pro­po­sal will undoubted­ly lead to exten­si­ve discus­sions wit­hin the Euro­pean Par­lia­ment and the Coun­cil, and is not expec­ted to be adop­ted any­time soon. 

In the mean time, cul­tural her­ita­ge insti­tu­tions are placing their hopes on yet anot­her solu­tion to the orp­han works pro­blem: the exten­ded col­lecti­ve licen­se (ECL). An ECL is basi­cal­ly an agreement betwe­en a col­lecti­ve rights mana­ge­ment socie­ty that repre­sents lar­ge num­bers of right hol­ders on the one hand and an insti­tu­tio­nal copy­right user (such as a broad­cas­ter or a libra­ry) on the other. What makes an ECL dif­fe­rent from ordi­na­ry col­lecti­ve licen­ses, is that it is exten­ded by for­ce of law to aut­hors or right hol­ders that are not repre­sented by the col­lecting socie­ty. In this way, an ECL auto­ma­ti­cal­ly allows the use of ‘orp­han works’. 

To scan or not to scan? (Photo: spy­er. CC: by-nc-sa)

Rea­ders of Vox Pub­li­ca will be proud to learn that the ECL (in Nor­we­gi­an: avtale­li­sens) is a Nor­dic legal inven­tion that has been applied in Scan­di­na­vi­an countries for years to col­lecti­ve licen­sing of broad­cast music and edu­ca­tio­nal photocopy­ing. In recent times ECLs have also faci­li­tated various mass digi­tiza­tion enter­pri­ses in the Nor­dic countries, inclu­ding the Bok­hyl­la pro­ject that makes Nor­we­gi­an lite­ra­tu­re avai­lab­le to the pub­lic in digi­tal form. The Nor­dic solu­tion to the copy­right pro­blems of mass digi­tiza­tion is attrac­ting increas­ing inte­rest from scholars and poli­cy makers around the world. In the Nether­lands, a recent study (pdf) by the Insti­tute for Infor­ma­tion Law advi­ses the Dutch Govern­ment to follow the Nor­dic examp­le. And even in the Uni­ted Sta­tes, whe­re the fai­lu­re of the Goog­le Books Sett­le­ment has inspi­red a search for legis­la­ti­ve alter­na­ti­ves (pdf), the Nor­dic model is becoming somet­hing of a hit.

Per­haps, like the Vikings of yeste­rye­ar, Nor­dic copy­right law will one day set foot on Ame­ri­can soil. 

About this article

This article sum­ma­rizes and upda­tes a pre­sen­ta­tion held by the aut­hor at the sym­po­si­um ‘The Goog­le Books Revo­lu­tion’ that was orga­nized by the Insti­tutt for infor­ma­sjons- og medie­vi­ten­skap (Depart­ment of Infor­ma­tion Scien­ce and Media Stu­dies) of the Uni­ver­sity of Ber­gen on March 21, 2011.







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