OPINION – Authors vs Google – search giant may yet win the right to scan the world’s knowledge

13 Oct 2012

Lisa Jackson

Google wants to scan and publish all the books in the world. But this ambitious goal has met with opposition from authors and publishers guilds in the US and Europe. Now, in the age of e-books and social and digital media, Lisa Jackson looks into the legal to and fro and ponders Google’s next steps.

Google Books Library Project hit the headlines again this month when the Association of American Publishers (AAP) settled its seven-year-old case with Google. The settlement allows publishers in the USA to refuse to allow their copyrighted books or journals to be scanned and digitised by the Project. This lawsuit was one in a queue of cases that Google is involved in at present to allow it to continue the Project and create the most comprehensive e-book library in the world. With the Project hampered by so much courtroom drama is it doomed to failure?

The terms of the settlement with the AAP remain confidential and neither party disclosed any payment amounts that were agreed to compensate publishers for the book scanning that was carried out by the multinational to date without permission. This amount could not have been trivial as a $125m settlement was rejected by a US District Court in 2011.

Also, as a result of the out of court agreement Google can only display 20% of copyrighted books it has scanned, allow the entire book to be bought through its e-bookstore Google Play and give a digital copy to a publisher for its own use. The settlement also reserves the right of publishers to opt out of the Project altogether.

Despite this settlement with the AAP, another US organisation, the Authors Guild of America, is still holding strong on its similar copyright infringement lawsuit against Google in relation to the scanning of copyrighted books written by its members. This case was taken in the same year as the publisher’s case and most recently appeared before an appeal court last month. 

Copyright exists to protect the rights of the author of artistic or literary works and restricts third parties from interfering with the copyrighted work. The author is the first owner of the copyright in a work and enjoys both economic and moral rights. By undertaking the mass scanning of copyrighted books the Authors Guild asserts that Google has breached these rights.

Across the EU and in the USA copyright protection begins on the date a work is created and lasts until 70 years after the date of death of the author. In March of this year, Google revealed that it had already scanned more than 20m books. While there is no data to show how many of these books were still under copyright protection the infringement potential from this volume of scanning is enormous. Google faces an uphill struggle to ease the concerns of the millions of authors and owners of the copyright in these books.

In Europe, a similar case with the Publishers’ Association of France (the Société des Gens de Lettres (SGDL)) settled in June of this year after six years. Under this settlement French publishers will offer Google digitised copies of books to sell online. The publishers also agreed the terms of a profit-sharing arrangement that remained confidential.

Will Google stay the course?

After successfully settling two long-running actions in the USA and France, it remains to be seen whether Google will be able to settle the lawsuit with the Authors Guild or if the Guild will stay the course and allow the courts to decide on the copyright issues involved in this case.

It is widely accepted that the traditional publishing industry is facing huge challenges to generate profits. In reality, if the Books Library Project opens up new revenue streams through greater online book searchability and Google Play, it will be difficult for any author or publishing house to opt out of the Project. Additionally, for all outstanding court cases a generous settlement would be tough to refuse.

A further boost for Google’s troubled Library Project came this week when a federal court in the USA last week ruled that Google is covered by an exception to copyright infringement under US copyright law called ‘fair use’. This exemption allows for copies of copyrighted material to be made for scholarly, teaching or research purposes. The case was slightly different from the others in that Google was scanning the books from university libraries with their consent and sharing a copy with those universities that in turn created an online database between a number of institutions called the HathiTrust. If this scanning was for a commercial purpose the outcome may have been very different.

Now with the courts appearing to come to Google’s aid (albeit in limited circumstances) the suit by the Authors Guild seems on shaky grounds. On its website its disagreed strongly with the judgment of the court and have vowed to meet with international counterparts with a view to planning their next move in this matter.

It seems Google may see a few more courtrooms before it can clear the way to digitising the world’s books within one online repository. Its next major stumbling block with be the Authors Guild case and many will await the next move in this case with anticipation. The Project has survived since 2004 and reached amicable settlements with disagreeing parties to date.

It would be unlikely that Google will allow the Project to be stalled at this stage.

Lisa Jackson is an ICT solicitor with Leman Solicitors. Follow Lisa on Twitter.