Hierdie is die LitNet-argief (2006–2012)
This is the LitNet archive (2006–2012)
Bertus Preller - 2010-09-15
“Was it ever reasonable to think that such a
There are an estimated 32 million books in the world; 15 million are fiction books and 17 million are non-fiction books. Since 2002 Google has scanned close to 10 million books found in various US libraries, mostly non-fiction books, of which about 15–20 percent are in the public domain, 10 percent are in copyright and in print, and 70–75 percent are in copyright and out of print. These books were scanned without the publishers’ and authors’ consent.
One can argue that books are probably the most traditional of all copyrightable works ever developed, particularly for protecting the authors and publishers of books. Through the years, copyright haS been granted to creators of all kinds of works, from films to software. While most of these other types of copyrighted works are strongly affected by new forms of content production and distribution in the course of the so-called “digital revolution”, books seem to have been relatively immune, at least till now, to these same technological changes.
The Google Book Search has inspired intense controversies between supporters, who paint an optimistic picture of universal access to all books ever published in the world for virtually everybody, and adversaries, who fear the rise of a knowledge monopolist who exploits authors, publishers and readers alike.
In terms of the settlement, $45 million has been set aside as payouts to rights holders whose books Google have already scanned: $60 for each book, $15 for each insert, and $5 for each partial insert. The lawyers for the author and publisher subclasses will get a total of $45,5 million if the settlement is approved. The rest of the settlement funds are being used to create the Book Rights Registry, which will be created upon approval of the settlement, although $12 million has already been spent on administrative matters, such as notifying members of the class about the settlement.
The foreign rights holders objected to GBS 1.0 because under it Google would have got a licence to scan all foreign rights holders’ books and to commercialise those that were not commercially available in the US. This would have meant that Google could have commercialised virtually all foreign books (which are generally not available in US bookstores), unless their rights holders filled out complicated paperwork to protest this. As a result of these objections GBS 2.0 was proposed.
For purposes of GBS 2.0, a “Book” is a written or printed work that meets the following three conditions as of January 5, 2009:
Under GBS 2.0 the only foreign rights holders who remain in the GBS settlement are those from the UK, Canada and Australia. Richard Sarnoff, chairman of AAP, explained that these countries had legal cultures and publishing industries similar to those in the US. How different, though, is South Africa’s legal and publishing culture from that of Canada or Australia?
That GBS 2.0 will take foreign rights holders out of the settlement class does not necessarily mean that Google will no longer scan foreign books. Nor does it mean that foreign books already scanned by Google will be deleted from the corpus. These books will almost certainly be available for Google’s use for non-display purposes, such as the development of better automated translation tools.
Being dropped from the settlement is also no guarantee that foreign books will not be commercialised. If foreign rights holders want to be certain that Google will stop scanning their books, remove the books from the GBS corpus, or cease commercially significant uses, they may have to sue Google to achieve their objectives.
Google does, however, intend to continue scanning foreign books into its search base, and to display snippets in response to search queries. In other words, Google intends to continue the existing Library Project with respect to the foreign books. Because the GBS 2.0 does not cover these books, their rights holders could sue Google for copyright infringement for scanning and snippet display and Google presumably would defend itself by claiming that its activities fall within the fair use privilege. Google also will attempt to negotiate for permission for full text display from foreign collecting societies that have the authority to represent the copyright interests of authors and publishers in their countries.
Eliminating the foreign books from the settlement means the elimination of many of the foreign rights holders from the class of plaintiffs. The plaintiff class is defined as the holders of a US copyright interest in a book under the settlement; if a foreign book is no longer covered by the settlement, its rights holder is no longer a member of the plaintiff class. By removing foreign language books and their rights holders from the settlement, the parties have removed the source of much of the controversy concerning the settlement. At the same time, the products available under the GBS 2.0 will be far less comprehensive.
A fairness hearing on the GBS 2.0 was held in February 2010 and is currently being considered for approval by the presiding judge.
Some publishers criticise the suggested price-setting procedures, fearing too low digital prices. As planned, Google would set prices for institutional subscriptions to out-of-print books in the corpus in consultation with the BRR, while prices for consumer purchases would be set through an algorithm designed to optimise the market returns for each book, although rights holders remain free to set their own prices for each book. Similarly, some professional authors worry that they will not be adequately compensated for Google’s commercial use of their books in so far as Google keeps prices of GBS institutional subscriptions low.
While some publishers and professional authors are concerned that prices could be too low, library associations and academic authors share the oppositional concern that approval of the settlement could, over time, lead to price gouging for institutional subscriptions. In addition to the power derived from the de facto monopoly that the settlement would confer on Google, super-competitive prices could also result from the consultation with the BRR, whose mission is to represent rights holders who will almost certainly press for higher prices.
Users of the public access terminals at higher education and public libraries will be charged a fee for every page of every GBS book that patrons print out, and this fee will go to the BRR. While photocopying the same pages from a book taken off a library bookshelf would have been free as fair use in the US or as a private copy in Europe, this could be treated as a “precedent” by publishers for charging libraries per-page copying fees more generally.
As GBS e-books will be available only online, readers are not able to lend their books to friends, resell their books or make private copies – all these are free uses of traditional books and at least of some other e-book formats.
Similarly to libraries, consumers also run the risk of paying monopoly prices, as Google intends to sell out-of-print e-books at an average price of $8,65, a rather high price given that in-print e-books are currently selling for $9,99 and sometimes less and are not bound to internet access and server availability as in the GBS model.
Google’s unqualified right to sell the corpus to anyone without getting consent from BRR or anyone else, as well as Google’s technological monopoly, have raised doubts across stakeholder groups with regard to the quality and sustainability of GBS. Even more, Google can exclude books from GBS for editorial reasons, creating a risk of censorship. This risk is particularly salient as GBS searches cannot be conducted on removed books, even for purposes of letting a prospective reader know at which library the removed book can be found; Google is not planning to make a list of removed books available for public inspection and it does not have to say which books were left out.
For readers, inadequate guarantees of privacy protections could have a chilling effect on the willingness of users to read controversial materials, and consequently may diminish the ability of authors of controversial books to earn money from them.
In what new ways will this agreement enable users to access books?
Specifically, readers will be able to access books through:
If approved, the settlement would provide:
Apart from the benefits there are also some very worrying aspects that one should keep in mind. Let’s assume that GBS is approved in modified form and works as intended for 10 to 15 years, libraries and researchers become dependent on it and shed books since they no longer seem necessary – the fact is that Google could sell GBS to Rupert Murdoch or China.
Many aspects of the settlement agreement are brilliant, but other aspects are deeply troubling, maybe even evil.
It is very worrisome that this agreement, which was negotiated almost in secret by Google and a few attorneys working for the Authors Guild in America and AAP (who will get up to $45,5 million in fees for their work – more than all of the authors combined), will create two complementary monopolies with exclusive rights over a research corpus of such a magnitude.
The Google Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a complete restructuring of the whole book industry’s future without much meaningful government oversight. Whatever Judge Chin rules, an appeal is likely. Litigation may resume, but the parties cannot be looking forward to this. The Google Book Search is one of the most significant developments for copyright and for the book industry in decades. So many objections have been raised and it is hard to believe it will ultimately be approved. But even if it isn’t approved, GBS has dramatically changed the landscape in the US and abroad.