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.







Kommentarfeltet til denne artikkelen er nå stengt. Ta kontakt med redaksjonen dersom du har synspunkter på artikkelen.

til toppen