Google’s settlement in the United States of copyright infringement claims by authors and book publishers faces strong opposition from European publishers. The deal does not apply to books outside the US and one Google official has suggested the need for a similar service in Europe. Could digital library Europeana be the solution? A 28 August European Commission policy statement addressed that concern and others.

The 29 October 2008 settlement ended class-action litigation brought by book authors and publishers over claims Google Book Search violated copyright laws by digitising millions of protected books (IPW, Copyright Policy, 30 October 2008). The deal is expected to make millions of in-copyright, out-of-print books available online, give their authors control over, and payment for, access to them, and fund an independent Book Rights Registry to distribute payments, locate rights holders and allow IP owners to opt in and out of the project, the parties said.

It is subject to approval by a US federal court, which set 4 September 2009 as the deadline for comments, objections or opting out of the agreement.

The settlement sparked strong criticism from groups such as the Booksellers Association of the UK and Ireland, which said last November that it fears Google’s “gateway position,” if abused, could “create a de facto monopoly.” The UK Society of Authors rejects any system that allows material to be uploaded onto databases without prior permission from its author, it said in July.

Publishers are committed to making their works widely available but Google’s solution is not deemed desirable or necessary in Europe, UK Publishers Association Policy and Communications Head Benjamin King told Intellectual Property Watch.

Book Search Coming to Europe?

The settlement has stirred up a “variety of controversy, commentary and review” ahead of the US court’s October approval hearing, William Echikson, Google senior communications manager in Brussels, noted in a 21 July Wall Street Journal article. At the heart of the debate, he wrote, “is a challenge European governments are themselves working to resolve: how to open up access to the world of knowledge contained in books.”

Books that are in copyright but out of print are the trickiest category and make up the majority of the world’s books, Echikson wrote. Google’s deal will dramatically expand access to out-of-print books in the US but will “mean little for Europe,” he said. “The development of a similar innovative service in Europe requires cooperation from technology companies and a myriad of rights holders,” but would benefit European authors and publishers and give Europeans greater access to the world’s books, he wrote.

Over 50 percent of Google’s traffic now comes from outside the US and the company’s goal is to make all its products and services global, a spokesman said. The search engine plans to “extend the benefits of this agreement to international countries” and is actively working with rights holders to do so, he said. However, it is premature to discuss either the details of the US services resulting from settlement or how the regime might work abroad, he said.

What Google is trying to do in the US and wants to do in Europe is to obtain a licence to commercialise out-of-print books without getting permission from rights holders, said University of California at Berkeley Law Professor Pamela Samuelson. It is doing that in the US by means of the class-action settlement process but needs a different tactic in Europe, she said. Governments could decide to say yes to Google by passing legislation, collecting societies might cooperate, but it is not easy to get obtain a blanket licence from all rights holders, she said.

Many European authors, particularly in Germany, object to Google’s actions because scanning books first and getting permission later “flips the usual default rule of copyright on its head,” Samuelson said. “Google is using the seeming fait accompli of the US settlement to extract from Europe a permission to do the same thing so that Europeans can benefit” from the deal, she said: “The devil is in the details here.”

EU Digitisation Lagging

Digital library Europeana, not Google, is the answer to making European culture accessible online, Federation of European Publishers Director Anne Bergman-Tahon said in an interview.

Europeana, launched by the European Commission and national culture ministers on 20 November 2008, offers direct access to digitised books, audio and film material, photographs, paintings, maps, manuscripts, newspapers and archival documents. It now has 4.6 million digitised works but fragmented European copyright laws and slow digitisation by many countries is holding it back, the Commission said in a 28 August policy statement on Europeana’s next steps.

Friday’s policy statement supports an approach that seeks to be open to private-sector initiatives and technological innovation, and looks with interest on what Google’s doing about orphan works, while at the same time it presses governments to get their cultural material digitised for Europeana.

The Commission wants Europeans to have 10 million objects accessible by 2010. One key challenge is to include in-copyright material in order to avoid a “20th century black hole” in which a great deal of cultural material from before 1900, but not much from the recent past, is accessible online, it said. But different licensing arrangements across Europe risk turning the content into “national silos on the internet,” she said.

Orphan works are another priority, the Commission said. It asked member states in 2006 to deal with the situation but there has been little progress, it said. The Google settlement has raised the issue’s visibility because the book rights registry it funds will be used to help locate rights owners. The EU finances the Accessible Registries of Rights Information and Orphan Works (ARROW) project, but the Commission said it “looks with interest” to new solutions being tested by Google and US rights holders for making orphan works more widely available.

With only five percent of digitised books in the EU available on Europeana, governments must stop “envying progress made in other continents and finally do their own homework,” Information Society and Media Commissioner Viviane Reding said.

The ‘Future is Europeana’

Publishers are doing just that, Bergman-Tahon said. They are building a Web repository for recent books and digitising some out-of-print works valuable to the publishing sector, she said. They want a public-private partnership to give libraries and citizens access to those works through Europeana or some other pan-European initiative and national libraries, not via a link with one commercial company, she said. Some publishers may choose to work with Google, but that will be done through individual contracts, she said.

Germany’s answer to Google, for example, is Libreka.de, she said. The website currently provides access only to in-copyright books in German, but publishers will next digitise their backlists after securing permission from each author, a process that takes time, she said. Libreka has an agreement with the national library on how to deal with orphan and out-of-print. materials, she said.

“For me, the future is Europeana” for works that are out-of-copyright and, in some cases, out-of print, Bergman-Tahon said. For in-print content that will eventually be digitised, national services such as Libreka, where users can search for, purchase or rent works, are the way to go, she said.

This is a very European road that will not look like the US solution, she said. It involves a combination of public and private partners who are not competitors, she said. The European publishers group will meet with Reding in September to prove they’re digitising cultural content in a much more inventive way than Google, she said.

Europeana has the potential to be the “Google-like service Europe needs” but as part of a broader vision, said Europeana Marketing and Communications Manager Jonathan Purday. The EC has enabled Europeana to become operational and laid the foundations for an integrated platform providing access from museums, archives, libraries and audiovisual collections. But the digital library’s future “depends on countries scaling up their digitisation efforts” and unifying their fragmented legal framework, he said.

When ARROW, Europeana and rules for dealing with orphan works are in place, Europe will have, in terms of user experience, a service similar to Google’s but with more checks and balances and without information being held by a single entity, King said.

There is no competition between Europeana and Google’s book projects, Google European Copyright Policy manager Antoine Aubert wrote 28 August on the company’s public policy blog. The services are complementary, he said, and Google is working hard to broaden its cooperation with European libraries which form Europeana’s backbone. Italy’s Ministry for Culture recently announced its intent to work with Google to accelerate scanning of Italian-language books, he said. France is reportedly considering a similar move.

The EC will hold a public hearing on 7 September to discuss the US settlement. In connection with its policy statement it is seeking input on Europeana’s future; the consultation document is here [pdf].