I doubt that there will be a person reading this blog post who is not in favour of ensuring wider access to the world’s literature and scientific learning. The digitisation of out-of-print books has tremendous potential to help achieve this task and to do so in ways unimaginable to many of the authors and publishers whose works are now in the public domain.
Often, however, great projects need to be thought through to ensure that the benefits outweigh the costs, that they are being done in a way which respects all the interests concerned and which do not give rise to harmful, unintended consequences. Sometimes one great project means that another, possibly better, project will never leave the drawing board.
The proposed Google Book Settlement raises all these issues.
Almost everyone agrees that if the proposed Settlement goes ahead, no other similar project will ever reach fruition. It is crucial therefore that before it is endorsed we have as much information as possible so as to ensure that it really will deliver its benefits with the minimum costs. Questions should both be encouraged and answers demanded.
ICOMP and a number of other interested organisations have therefore written to the European Commission with a number of questions that Google needs to answer:
1. Why does the settlement force non-U.S. authors and publishers to opt out of a deal they were never consulted on, or even received notice of, in order to protect their copyright? Why can’t they be asked to opt in?
2. How can Google claim that the Authors Guild and AAP—which according to each association’s rules are limited to U.S. authors and publishers, respectively—represent all the authors and publishers in the world?
3. Why was the settlement not made available in all EU languages, to allow European authors and publishers who don’t speak English to understand what the deal would mean for them?
4. What efforts have been made to ensure that the fine arts and photographic rights, which appear to be outside the scope of the proposed Settlement, are not adversely affected?
5. Google has repeatedly claimed that the settlement is not anti-competitive because the proposed Books Rights Registry (BRR) will have the ability to license rights in books to others, but there is nothing in the settlement that would authorise the BRR to license orphan books or unclaimed books —i.e., books where the rights holder cannot be located or chooses not to register with the BRR. Can Google identify the provision in the settlement that explicitly authorises the BRR to license orphan books and unclaimed books?
6. In response to European anger over the settlement, Google has reportedly issued a letter saying that it will not exploit books that are commercially available in Europe. Doesn’t this conflict with the express terms of the settlement? If this assurance is going to be worth anything as a legal matter, doesn’t Google need to revise the settlement to incorporate it?
7. Is it true that the database of books Google is building can only be searched with the Google search engine, and if so, won’t this reinforce Google’s overwhelming market power in search and search advertising? Isn’t this a reason that European competition regulators might have legitimate concerns about the settlement?
8. Will Google agree to provide competitors – including search competitors - with direct access to the database of books it is scanning in order to promote competition in book search and related markets — and to ensure that this settlement does not confer a de facto monopoly on Google in book search or strengthen its monopoly in search and search advertising? And if so, will the settlement be revised to incorporate this?
9. Will Google guarantee not to combine any user data it collects in connection with Google book search with data it collects in connection with any of its other services?
10. The settlement authorises Google to engage in non-display uses and to conduct algorithmic experiments (“non-consumptive research”) on books in order to improve its search services, but also gives it the right to exclude any commercial company from doing the same (see §7.2 and §1.121). Why does Google feel that provision is necessary? Isn’t there a valid concern that this might aggravate the anti-competitive impact of the settlement?
A copy of the full letter is available on ICOMP’s Issue Statements page.
David Wood
ICOMP legal expert
Tags: Book Search