Click here to see full sized version.

As a result of its recent settlement agreement with the Authors Guild and the Association of American Publishers (AAP), Google is in a position to dramatically expand its efforts to digitize the world’s written works. Canadian authors and publishers with U.S. copyright interests must determine whether it is in their best interests to participate in these efforts.

In 2004, Google launched an application called Google Book Search (GBS). GBS is a tool that allows users to search over the full text of approximately seven million books scanned by Google and stored in an electronic database.

Through GBS, users can read and download entire works in the public domain. Works still in copyright are shown in the style of a card catalogue (unless the copyright owner has consented to greater access), featuring basic bibliographic information, “snippets” of text showing the search term in context, and links to reviews, retailers and nearby libraries.

Some books in GBS have been digitized with the permission of the copyright owner. Google has also partnered with select libraries around the world to digitize their collections and include them in GBS.
On Sept. 20, 2005, the Authors Guild and certain authors filed a class action lawsuit against Google, alleging that Google infringed copyright by digitizing works contained in the libraries’ collections without the permission of the copyright holders and by showing “snippets” of those works as part of GBS (The Authors Guild, Inc., et al.  v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.)). On Oct.19, 2005, five publisher-members of the AAP also filed a lawsuit against Google, raising issues identical to those brought in the class action lawsuit.

Google maintains that its activities do not infringe copyright. It also argues that even if its activities are found to be infringing copyright, they fall under the fair use doctrine. The doctrine of fair use, the American equivalent to Canada’s fair dealing defence, states that if a use that would otherwise be infringing (for instance reproducing a work in its entirety without the permission of the copyright holder) is determined to be for a  “fair” purpose (for instance, criticism, comment, news reporting or research), copyright will not be infringed.

 The question of whether GBS infringes copyright, however, may never be answered by a court. After two years of negotiations, a settlement agreement resolving both the class action lawsuit brought by the Authors Guild and the lawsuit brought by the AAP was reached on Oct. 28. The settlement is subject to approval by the United States District Court for the Southern District of New York.

The settlement agreement requires Google to make payments totaling US$125 million. These funds will be used to cover the legal fees of the parties involved, make payments to resolve existing claims by authors and publishers, and establish a not-for-profit book rights registry which will maintain a database of rightsholders and collect revenues from Google for distribution to those rightsholders.

The settlement agreement authorizes Google to continue its digitization efforts. It also authorizes Google to sell institutional subscriptions to its electronic database, sell online access to individual books and place advertising on pages where books are displayed. Google, through the book rights registry, will pay rightsholders 63 percent of all revenues that it receives from these uses.

In many ways, this settlement agreement can be seen as providing significant benefits for all of the parties involved. The U.S. public will benefit from increased access to books, particularly those that are out of print but still in copyright. Following the settlement, U.S. users will be able to preview up to 20 percent of books  currently under copyright.

Libraries benefit from the ability to provide a service to the public that they might otherwise be unable to afford to offer. Google will benefit financially from the ability to retain 37 percent of the revenue received from GBS. Authors and publishers benefit from new or expanded markets for their works. They also retain the ability to opt out of the database or limit their participation in the database.

A variety of concerns, however, may be raised with respect to the agreement, ranging from the implications of the settlement for the fair use doctrine to anti-trust concerns stemming from the creation of the book rights registry. A third concern involves the cost of purchasing institutional subscriptions to the electronic database. The lack of any assurance in the settlement that the prices charged for access would be reasonable led the Harvard University Library to decline to participate in the project.

Canadian authors and publishers are directly affected by this agreement.  Works written by Canadian authors, provided they satisfy the criteria set out in the U.S. Copyright Act, qualify for U.S. copyright protection. Canadian authors, publishers and other persons whose works have been digitized by Google without their permission must determine whether their interests are better served by participating in the settlement or by opting out.

Graham Reynolds is an assistant professor in the Faculty of Law at Dalhousie University, a member of its Law and Technology Institute, and editor-in-chief of the Canadian Journal of Law and Technology.