Has there been a thaw in Euro-Google relations? It may be premature to say, but in the U.K., after an initial icy reception to the Google Book Search settlement, Benjamin King, head of policy and research for the U.K. Publishers' Association (PA) told PW last week that progress is being made in addressing specific European rightsholders' concerns with the deal. Since criticizing the settlement as complex, “exhausting” and “U.S.-centric” at this year's London Book Fair, King said the PA, through the Federation of European Publishers (FEP), has worked closely with Google, as well as the Association of American Publishers on a few key points. “There has been a will to improve the settlement,” King said. “We have found Google and the other parties to be quite cooperative.”
Specifically, King said, European publishers have been working on two “enforceable side agreements” that would make the settlement more palatable—though he conceded it was not yet clear exactly how these agreements would be enforced. The first agreement would include a non-U.S. representative on the board of the Book Rights Registry (BRR). “Currently there is no provision for a European publisher or author representative, which I believe to be really nothing more than an oversight,” King said. “Hopefully, one side agreement will mean that at least one board member of BRR will be non-U.S.” The second side agreement concerns the definition of “commercially available” books. As written, the deal does not take into account metadata from outside the U.S. in determining which books are commercially available.
To be clear, the Google Book Search settlement does not apply to Europe. Further, any European opposition is not likely to affect the approval process in the United States. Unfortunately, the benefits of the deal are also restricted. “Because this agreement is the product of a U.S. lawsuit, it directly affects the Google Books experience only for those accessing the site in the U.S.,” explains Google's Dan Clancy. Clancy said Google will “actively work with rightsholders on ways to extend benefits of this agreement outside the U.S.,” although he could not share specifics.
Hearings to Come
Because the deal does not apply to Europe, however, does not mean that foreign rightsholders do not have an interest in the settlement—in fact, a significant number of foreign authors and publishers own U.S. copyrights and would be subject to the terms of the settlement. King acknowledged that many foreign rightsholders with books potentially swept into the settlement are concerned about—and perhaps still puzzled by—the legal underpinnings of U.S. copyright and class-action law. In some non—English-speaking countries, the deal may be further complicated by the lack of a good translation of a document that's hard enough to understand in one's native language.
King stopped short of saying the PA supported the settlement's approval—but he did give something of a tacit endorsement. “Corporately, we haven't taken a position—we represent much too broad a church to do that,” he noted. “Our role is to educate and hopefully to work out some of these side agreements.” Yet, King said there was a “fairly unanimous feeling” in the U.K. that “if the settlement was to fall it wouldn't be a beneficial thing.” Of course, views of the settlement differ across Europe—which should make for an interesting time on September 7, when the European Commission is scheduled to hold a hearing on the Google Book Search settlement. King said the PA has asked to and expects to participate in the hearing. Perhaps the most notable aspect of the European hearing is that that one is being held at all, considering that in the U.S., where the complex settlement could become binding with court approval in a matter of months, the government has taken little interest in the future of book search beyond a closed-door Department of Justice investigation of possible antitrust issues.
“I think the purpose of the hearing is twofold; first, as a fact-finding mission for the commission.” And secondly, King said, the hearing will “determine the strength of feeling publishers and rightsholders have for or against, shall we say, Google-led solutions in Europe.” Clancy stressed that the European hearing “is not an investigation” and said Google is looking forward to participating.
King acknowledged that some of his European counterparts harbor more “principled objections” to Google's actions. Indeed, Europe's uneasy feelings about Google's library scan plan date back to the program's inception. In 2005, French National Librarian Jean-Noel Jeanneney made international headlines with a Le Monde editorial warning Europeans that Google Book Search constituted “a risk of crushing domination by America in defining the idea that future generations have of the world.” Shortly after the settlement was announced last year, the European Booksellers Federation (EBF) blasted the deal as “a Trojan horse on which Google advances to take over the worldwide dissemination of knowledge and culture.”
And in Germany this spring, some 1,300 authors signed a letter known as the “Heidelberg Appeal,” a plea for the government to mount “a resolute defense” against platforms including Google Books. The appeal decried the “political toleration of pirate copies, currently being produced in huge numbers by Google,” and wistfully concluded that “if we lose, we lose our future.”
Dramatic words—perhaps overly so—but positions that are sure to be echoed on September 7. However, beyond specific concerns raised by rightsholders, the hearings in Europe could strike more deeply at the critical issues around digitization beyond the settlement. For example, without fair use and without class-action law, two constructs that do not exist in Europe but which facilitated the Google Books project's beginning—and its resolution—in the U.S., exactly how will book search, Google's or otherwise, work effectively overseas compared to the deal awaiting approval in the U.S.?
A Government Option?
For its part, Google has actively courted European partners for its Google Book Search partner program, including libraries in the U.K., Spain, France, Belgium and Switzerland, which have contributed an array of public domain titles. Although the program is certainly smaller and more restrictive than the program that would be enabled by the sweeping U.S. settlement, Google Book Search is already a dominant player in Europe.
In response to Google's scanning efforts, meanwhile, Europe has undertaken its own digitization initiative and built a Web site: Europeana, which offers an array of resources, including scanned books from European libraries. Launched in December 2008, Europeana.eu was so overwhelmed by traffic in its first hours that it crashed and remained down well into 2009. The site is now said to be functioning properly.
The EU has also made modest headway on orphan works with an initiative called Arrow (Accessible Registries of Rights Information and Orphan Works), a nascent plan to create European registers of orphan works. In a July speech, EU Information Society Commissioner Viviane Reding stressed the need to “modernize” copyright rules in Europe to better facilitate book search.
“We should create a modern set of European rules that encourages the digitization of books,” Reding said, adding that “more than 90% of books” in Europe's national libraries are either out of print or are orphan works. “The creation of a Europe-wide public registry for such works could stimulate private investment in digitization,” she noted, “while ensuring that authors get fair remuneration in the digital world.” It would also, she suggested, “help end the present, rather ideological debate about Google Books.”
“We agree with European Commissioner Reding,” Google's Clancy told PW. “It's important to discuss how we can use the Internet to bring back to life millions of books around the world that will otherwise be lost.”
Reding told reporters she understood “the fears of many publishers and libraries facing the market power of Google,” but said she also shares “the frustrations of many Internet companies which would like to offer interesting business models in this field, but cannot do so because of the fragmented regulatory system in Europe.”
While the hearing in Europe is likely to have virtually no effect on the settlement in the U.S., there is one potentially significant outcome of the hearing: it could move the conversation over book scanning and digitization beyond the comments of aggrieved or confused stakeholders in the Google Book Search Settlement to a broader discussion of how to encourage and support more global solutions.
“What we feel in Europe,” King said, “is that Google's involvement isn't needed to address the question of our out-of-print and orphan works.”
