Scanning the World’s Library
In the context of the Google Books project, all is not well with the search giant, with Justice Chin of the US District Court rejecting the proposed settlement between Google, the Authors Guild and the publishing industry. That said, it does not appear that Google has any immediate plans of discontinuing its rather ambitious plan to scan, convert, store and make available, in the form of snippets, every book ever published. The service could benefit scores of students, academics and practitioners from across the world, some of whom have deemed the service to be invaluable where hard copies of books are damaged, out of print or in some cases, too expensive to be procured.
The Google Books Settlement (or ‘GBS’) is an attempt by Google to counter the claims of copyright infringement that were leveled against it as early as in 2005. Google has relied on the fair use defence in copyright law, which many have argued is inapplicable to the copying of full texts for storage and publication. The larger issue that courts have been concerned with relates to the sheer quantity of information that Google has copied on to its servers, notwithstanding its claim of providing only searchable summaries to users in the case of copyrighted works. But in light of the copyright claims against it, Google entered into a settlement agreement with the Authors Guild and the publishing industry on October 28, 2008.
Terms of the Settlement
A detailed explanation of the terms can be found on Google’s official website, but the main terms are as follows:
- Google has been granted merely non-exclusive in nature. This means that authors and publishers are free to enter into similar agreements with other companies. For example, if Amazon were to start its own digital library in the future, the GBS would not preclude its formation.
- Google is allowed to digitise books, sell subscriptions, online access to individual books and also advertise on certain pages. The primary service however appears to be the display of previews, snippets and bibliographic information based on search terms.
- Google will pay rights holders 63% of all revenues Google receives from the commercial uses of the digitised books.
- Google will pay $34.5 million to establish and maintain a Book Rights Registry, containing contact details and relating to the collection and distribution of revenue to rights holders.
- Rights holders were given the opportunity to decide if and how much of a book Google was allowed to copy.
- The settlement also provided for the creation of an independent Unclaimed Works Fiduciary to represent the interests of, and assume responsibility in relation to unclaimed works. This term is relevant to ‘orphan works’ (where the copyright owner cannot be traced)
Problems with the Settlement
Copyright: There were two main grounds of objection under copyright law. Firstly, it was argued that the GBS covers issues that should be properly deliberated upon and decided by Congress and not through private agreement between parties. Since the GBS was subject to the court’s affirmation, any decision by the court would be an encroachment of Congress’s constitutional and legislative powers. Secondly, there were concerns raised with respect to orphan works.
Class action suit: Objections were raised with respect to the notice given to authors and copyright owners, the adequacy of representation and with respect to the applicability of Rule 23 of the Federal Rules of Civil Procedure, which govern class action suits.
Antitrust: The antitrust concern is perhaps the most obvious, with the argument being that the GBS would allow Google to virtualyl monopolise the digital books market. The emphasis appears to be on the existing dominance of Google in the overall online search market.
Privacy: The privacy concerns relate to the vast amounts of information that Google would be able to amass by tracking user habits. Google would have access to the books viewed by a particular user, the page number as well as the amount of time spent on each page.
International law: Although the GBS is restricted to U.S works and works registered in the U.S., the opt-out system envisaged under the settlement caused some to suggest that it would violate international law by requiring foreign rights holders to determine the applicability of the GBS to themselves.
Copyright: One of the fundamental issues was whether judicial affirmation of the settlement would be treated as an encroachment on the legislature’s prerogative to address copyright issues, such as those covered in the proposed settlement. The U.S. Supreme Court has previously declared that judicial intervention is only appropriate when copyright issues are presented as a result of technological developments. Most notably, the court discussed the GBS’s opt-out system, wherein authors who were covered under the settlement would have to notify Google of their desire to have their works excluded. Such a system was vehemently objected to on the ground that it deviated substantially from the intent and purpose of U.S copyright law which allowed a rights holder to ‘sit back, do nothing and enjoy his property rights untrammeled by others exploiting his works without permission.’ It appears that the GBS could certainly expropriate rights of individuals involuntarily, by means of a private arrangement, unrecognised by copyright law. This is even more unreasonable to a class member who is unaware that the settlement covers works owned by him or her, and upon failure to expressly notify Google of such exclusion, finds that the work has been digitised against his will. The judgement cites the concerns of several independent authors who advance a similar argument, stressing on the need for a system that does not places the burden of exclusion or ‘opting out’ on the rights holder.
Class action: While this aspect of the court’s ruling is not particularly relevant to a discussion on intellectual property, it is an important element nevertheless, with the court finding that the members of the class received adequate notice of the proposed settlement. It described how individual notices were sent to rights holders, aside from the fact that a website was created solely for this purpose. At the same time, Judge Chin agreed that it was indeed possible that the interest of all members of the class were not adequately represented and may even have been at odds with each other. This issue has been explained in detail here.
Antitrust: The antitrust concerns primarily stem from the fact that Google would have a monopoly over orphan works and further entrench its position in the online search market. It would have the ability to deny future competitors the right to search orphan books, as well as enter into agreements with third parties to display snippets of books it has scanned for a fee. Judge Chin took note of this and and emphasised that the mandatory requirement for authors to opt out would grant Google a monopoly over orphan works, thereby raising serious anti-trust concerns.
Privacy: While Judge Chin remarked that ‘the privacy concerns are real’, he declared that they were, by themselves, insufficient to reject the proposed settlement. This suggests that perhaps in the next round of negotiations, Google should focus more on the copyright and antitrust concerns, while maintaining reasonable safeguards in respect of user privacy. Judge Chin suggests ‘additional privacy protections’, without getting into specifics, so it is hard to comment on this aspect of the settlement.
International law: These concerns were mainly advanced by foreign authors whose works were registered in the U.S to ensure coverage of American law. However, this would mean that their books fall within the ambit of the GBS. Of particular importance is the objection raised by Indian authors and publishers, who state that the settlement “continues to provide Google with sweeping rights to exploit works of Indian authors/publishers under copyright protection without their express permission/consent, a violation of international and Indian copyright laws.” Indian authors and publishers argued that the GBS violates the Berne Convention and the TRIPS agreement. Interestingly, Judge Chin in his decision states that “in any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.” The other issues raised by foreign right holders were acknowledged by Judge Chin, including the difficulty in determining whether the settlement applied to them and the larger issue of orphan works.
In light of these concerns, Judge Chin held the proposed settlement to be “unfair, inadequate and unreasonable” and rejected the proposed settlement. In his concluding paragraph, he hints that by changing the system into an opt-in regime, many of the difficulties expressed could be avoided. Secondly, by declaring that the motion is denied ‘without prejudice’, Judge Chin has left the door open for a renegotiation of the settlement terms.
This case could proceed to trial, the parties could appeal, or a renegotiated settlement could be submitted to the court. While the Authors Guild and publishers might prefer the latter option, Google has previously suggested that the creation of an opt-in system is not a viable option. Although Google continues to understate the issue of orphan works (since the number of works where authors cannot be located are relatively few) it continues to be an important concern expressed by the court, and one that Google must address in one form or another. Some have suggested that Google could push for a legislation that satisfactorily addresses the orphan works issue, providing sufficient room to manoeuvre through the settlement terms and realise its original objectives. Others have argued that Google has a very strong fair use case and hence settling for an opt-in system is redundant. What we can certainly expect however is a lot of haggling, lobbying and hurried negotiations.
This piece was first published on SpicyIP.
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