Google Books Settlement A Possible Path To Resolution Of Digital Content Disputes

By Dugie Standeford for Intellectual Property Watch
Google’s groundbreaking settlement of copyright infringement claims by authors and book publishers this week resonates beyond the United States, the European Commission and a UK copyright lawyer said. While the agreement affects only US users of Google Book Search, it points the way toward possible solutions to the overarching question of how to make digital content available while protecting intellectual property rights, they said.

The 28 October settlement ends class-action litigation brought by book authors and the Authors Guild and a separate lawsuit by five key publishers representing the American Association of Publishers (AAP), the parties said. The class action agreement is subject to approval by a US federal court.

The settlement is expected to make millions of in-copyright, out-of-print books available online, and to give their authors control over, and payment for, access to them, the parties said. US readers trawling Google Book Search will have access to up to 20 percent of a book’s pages instead of the snippets available now, Authors Guild Executive Director Paul Aiken said at a press briefing. They can then buy the book outright or purchase online access at a price to be set either by the rights holder or by a Google algorithm, said AAP Board Chairman David Sarnoff.

As part of the deal, the search giant will pay $125 million, $34.5 million of which will fund an independent Book Rights Registry to distribute payments from online access, locate rights owners, collect and maintain accurate rights holder information and allow IP owners to opt in and out of the project, the parties said. Google will receive 37 percent of usage fees, the registry the remaining 63 percent, Sarnoff said. The rest of the settlement funds will pay existing claims and legal fees, the parties said.

Institutional users such as libraries, government offices and universities will be able to buy subscriptions to entire in-copyright, out-of-print books, with fees to be split between Google and the registry, Aiken said. Google will track usage and apportion institutional rates based on the numbers of hits various books receive online, he said. Some issues, such as how each hit will be weighted to determine the amount of money to be paid, remain unresolved, he said. US public and university libraries also will be allowed to offer free, full-text online viewing of millions of out-of-print books at designated computers as part of the deal, the parties said.

In addition to fees generated by online usage and subscriptions, authors whose works Google has already scanned will receive around $60 per book, the parties said. Rights holders who agree to leave their books in the programme will get a $200 inclusion fee, Sarnoff said.

Google will place advertisements around and under the pages of text but not on the initial search results page, said David Drummond, Google senior vice president, corporate development, and chief legal officer. Google and the registry will share advertising revenues in the same 37:63 percent ratio, he said. The financial model “is a brand new world,” one that Google hopes is successful, Drummond said.

‘A Good Day for Copyright’

The deal has implications outside the US, said UK intellectual property lawyer Laurence Kaye. It “shows that Google’s activities beyond pure search are within the boundaries of copyright and sets the scene for more licensing deals,” he said. These could be “machine-to-machine” direct licences such as those under the Automated Content Access Protocol (ACAP), arrangements between individual content owners and Google, licences granted by collecting societies, or something else, Kaye said.

“It’s a good day for copyright,” Kaye added.

ACAP Chair Gavin O’Reilly welcomed the settlement, saying it “paves the way for all rights holders, regardless of their chosen business model or rights management systems, to get the appropriate reward for their efforts – while at the same time ensuring the widest possible access.”

The agreement shows that it is possible for industries with diverging interests in the digital environment to find mutually beneficial solutions, said a spokesman for the European Commission Information Society and Media Directorate-General. Consensus is a key element of the Commission’s content online initiative, he said.

One example of its policies is the digital libraries initiative to make books, paintings, archival records and other materials available on the Web, the spokesman said. The library, dubbed “Europeana,” launches 20 November, he said.

Simultaneously, the High Level Group on Digital Libraries, whose members represent cultural institutions, technology firms, publishers and other rights owners, is addressing key questions on how to make cultural content available on the internet while protecting IP rights and other interests, the spokesman said. Among other things, it has proposed practical ways for making out-of-print works available online while avoiding or limiting lawsuits, he said.

Dugie Standeford may be reached at info@ip-watch.ch.