Some issues related to mass digitization of books by Google : (Story and European perspectives)

Google Search Book’s story (1) December 2004 :  Google announced an alliance with five major libraries in US :  The goal : To digitize every book in those libraries and; To create a searchable database of the written world “Google’s innovative search technologies connect millions of people around the world with information everyday. Google Search Book was launched in 2004, and today enable the full text searching of more than a million books online. More than publishers and 28 libraries around the world currently work with Google to market their books through the service” (Google Press release, Oct. 2008)

Google Search Book’s story (2)  Scan and digitize books  Create a huge database of books and Store full digitized texts of the books on Google’s servers in USA  Display full text (for works of public domain), full 1st page cover  Display “snippets”, bibliographic informations (for works under copyright)  Link towards Book shops.  Create a “Google Books” Searching Engine similar to html searching engine.

Google Search Book’s story (3) “ It is massive copyright infringement” (Class action complaint Author’s Guild vs. Google, p.3, 2006) “Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers” (Association of American Publishers, Press Release, 2009) VERSUS “Mass digitization is a widening of human conversation comparable to the emergence of mass literacy itself” (President of the University of Michigan, 2007) “Even in the modern age of internet, it’s still shockingly difficult to find informations buried in books.” (Dustin Goot, “3 ways to scan a library”, 2003)

Google Search Book’s story (4) 2005 :  Google announced it will use the «opt-out» system to «legally» scan Books not in the public domain  Different authors and publishers react and bring Google to Justice, insofar as the agreement between Google and the libraries also concerns books still under copyright.

Google Search Book’s story (5) « opt-out » system ?  The “opt-in” system: required the prior agreement of the author or the rightholder to scan or digitize their work (ex, Amazon).  The “opt-out” system used by Google: authors and publishers will see their works added to the Google’s digital index unless they request the exclusion of their title from the project.

Google Search Book’s story (6) Advantages of the “opt-out” system  It eases the burden of obtaining author permission: Google is free from expenses of tracking down all right holders and obtaining their permission allows Google to include “orphan works” that have unknown copyright status or when the right holder is unknown.

Google Search Book’s story (7) in the USA  2005: The Association of American Publishers and the Authors Guild filed separate law suits against Google  Charges: Google Search Project is a violation of U.S. copyright’s law: Google scanned and stored copies of books still under copyright.

Google Search Book’s story (8) in Germany in Germany  Summer of 2005 one lawsuit was brought by the Wissenschaftliche Buchgesellschaft (WBG) against Google.  The lawsuit, which took place in summer 2006, asked the court of Hamburg to grant a preliminary injunction against Google (Inc. and Germany GmbH) to prohibit the ability to scan books published by the WBG to provide access of these books to the public

Google Search Book’s story (9) in France in France  2006: a lawsuit is filed against Google France and its parent company Google Inc. Claimants are three publishers owned by the French publishing Group La Martinière.  Charges: Google had committed both copyright and trademark infringement by: Digitizing books still under copyright, Making available snippets of books still under copyright and reproduction of their covers.

Google Search Book’s story (10) USA : The Settlement Agreement  In October 2008: the parties proposed the Google Book Search Settlement Agreement.  By the September 4, 2009 deadline for submission, more than 400 objections, amicus curiae briefs and statement had been filed with the court.  The parties to the lawsuits submitted on November 13, 2009 a new and narrower settlement proposal.  On November 19, 2009 the Court granted preliminary approval of the amended settlement.  The final fairness hearing took place on February 18, 2010.

Google Search Book’s story (11) USA : The Amended Settlement Agreement (ASA)  Google offers a one time payment of $100 million and a revenue sharing agreement.  Google receives the right to continue to operate its book search engine substantially in its current form  establishes a platform for Google to explore substantial new revenue possibilities in cooperation with authors and publishers: The Book Right Registry  provides for extensive book previews to be made available through Google Book search and new products and services that Google may offer as consumer electronic book.

Google Search Book’s story (12) The Orphan’s work and the ASA  Orphan work: books that the author and publisher have essentially abandoned the rights holders are unknown or cannot be found.  Consequences of the ASA, Google would become: the “legal guardian” of those works the only entity legally authorized to copy orphan works without any consideration to the rightholders the agreement would also grant a monopoly to Google on all orphan books

Google Search Book’s story (13)  On March 22th 2011, the Court denied the parties' request for final settlement approval.  Since the ASA has been rejected, Google and the editors are now working on a new project.

Google Search Book’s story (14) In the meantime, Google has scanned more than 12 million books  Google’s agreements : In march 2010, Google had concluded agreements with more than 40 Libraries (including 8 European Libraries). On the 10th of March 2010, Google concluded an agreement with the Italian Government to digitize 1 million books published before In June 2010, the Austrian’s National library announced an agreement for the digitization of books. In July 2010, the Netherlands' National library announced an agreement for the digitization of books.

European Perspectives 1.The question of the applicable law

Berne Convention for the protection of Literary and Artistic Works (September 1886)

Regulation (EC) n°864/2007 on the law applicable to non- contractual obligations (Rome II) Article 8 Article 28-1

European Perspectives 2. The stake of the applicable law

 In the UE, copyright has been harmonized by different Directives.  The Directive 2001/29/EC defines the rights of reproduction, distribution and communication to the public (art.2, 3 and 4), which are at stake when scan, digitization and display operations are concerned  The Directive 2001/29/EC authorizes a limited number of exceptions and limitations (art. 5)(“closed system”)

: the Google’s defense based on the US Law “fair use” exception Overseas : the Google’s defense based on the US Law “fair use” exception  Section the Section 107 of the Copyright Act fair use  The fair use of a copyrighted work […] is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

French Court’s Decision  The Court: Held that Google Inc infringes copyright and violates authors' moral right ordered Google Inc. to stop those acts, subject to the payment of a penalty of €10,000 per infringement and per day of delay in withdrawing the works ordered Google Inc. to pay to the claimants € 300,000 in compensation for the damages resulting from the copyright infringements  Google lodged an appeal on January 21, 2010 against the decision of the Paris Civil Court

French Court Decision’s Grounds  US Law does not apply this case  Google liability for copyright infringement  Google Inc., only company liable  Absence of unfair competition  Absence of trademark infringement

Last update  Google and La Martinière have reached an agreement in August 2011: La Martinière will determine the works Google may digitize La Martinière can at any moment ask Google to delete digitized copies Google will be authorized by La Martinière to sell part of the digitized books online  May 2011: A new action has been brought against Google by Gallimard, Flammarion et Albin Michel for copyright infringement ; withdrawn in September 2011 to avoid crispation in current negotiations’ rounds

Germany  The Copyright Chamber of the Regional Court of Hamburg told the WBG that it was unlikely to succeed, so it withdrew its petition for a preliminary injunction.  Google interpreted the decision as a rejection of WBG's argument that scanning its books in the U.S. infringed German copyright law.  A WBG press release interpreted the decision as reflecting the fact that Google had withdrawn WBG books under its "opt-out" policy as rendering the issue moot.

European Perspectives 3. Orphan works’ issues

“ Orphan works” in Europe  Others reactions to the ASA and the potential appropriation of the “orphan works” by Google: The Green Paper Copyright in the Knowledge Economy Commission Staff working paper: impact assessment on the cross-border online access to “orphan work”.

European Perspectives 4. Google books and the future of copyright law : Shall the paradigm of origin be reversed ?

CONCLUSION