Google Library Project Hit by Copyright Challenge from University Presses
Posted On May 31, 2005
Some might say it had to happen. Extending the Google Print program to the digitization of five of the world's largest university research libraries, including copyrighted as well as non-copyrighted material, would inevitably seem to lead to a challenge of copyright violation. Oddly enough, the challenge has come from the less commercial publishers—the nonprofit university presses. On May 20, Peter Givler, executive director of the Association of American University Presses (AAUP; http://www.aaupnet.org), an organization with 125 member publishers, sent a letter to Alexander Macgillivray, Google's house counsel for intellectual property. The letter challenged Google to defend its position on what would appear on the surface as a massive copyright violation and infringement on publishers' rights and revenues. However, in researching this story, the issue of author copyrights has emerged as a possible major factor.
[Editor's Note: For background NewsBreak coverage on Google Print and the Library project, see "Google Print Expands Access to Books with Digitization Offer to All Publishers," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16357, "Google and Research Libraries Launch Massive Digitization Project," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16307, and "Google's Library Project: Questions, Questions, Questions," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16302.]
Membership in the AAUP extends beyond university presses to scholarly societies, museums, and non-degree-granting research institutions, all primarily located in the U.S. and Canada. Together, AAUP members publish approximately 750 academic journals and 11,000 books per year and depend upon research libraries for their revenue. The AAUP is not the only possible combatant. Reports circulate that other publishers, e.g., John Wiley & Sons and Random House, have also protested to Google. The Publishers Association in the U.K. opened inquiries earlier this year. The Association of American Publishers (AAP; http://www.publishers.org), which initially seemed to approve the Google project, is expected to have the issue on the agenda for its board meeting in early June.
The AAUP letter states: "[T]he common mission that unites all our members is to help the advancement of knowledge by making the results of scholarly research known through their publications. …" However, the surprising announcement of the Google Print for Libraries program caused "mounting alarm and concern at a plan that appears to involve systematic infringement of copyright on a massive scale."
According to the letter, Google has asserted that it does not need permission from copyright holders, claiming "fair use" under Section 107 of the Copyright Act. AAUP questions this argument and maintains that "this large-scale infringement has the potential for serious financial damage to the members of AAUP." Part of that potential revenue threat would seem to stem from Google's promise to deliver electronic copies of its digitization efforts back to the five participating universities. The major threat, however, comes from worry over what Google will ultimately do with its massive collection after completion of the largest digitization project in history.
The letter does not threaten any immediate legal action. Instead it politely poses 16 questions ranging from the broad to the rather technical, asking for answers in order to "better inform our members about Google's practices and intentions." Beyond questioning the legal defense for creating a massive archive of digital texts without copyright holders' permission, the letter also questions Google's stated claim to rights in the digital files created. The AAUP also wants a specific definition of a "snippet" or the length of annotation shown in a KWIC display of content. And, how will Google protect this content? If a company should someday buy out Google, what protection would copyright owners have against exploitation? Or what if Google itself decided to offer access using a prospective pay-per-view technology for which it has made a patent application? The letter also questions the effectiveness and even the reality of Google's stated "opt out" option for publishers. The legal status of participating libraries acquiring a digitized quid pro quo in copies of Google scans of their collection is also challenged.
The letter concludes in a salute to the "wonderful potential" of Google Print for Libraries but maintains that "[I]t cannot legitimately claim to advance the public interest by increasing access to published information if, in the process of doing so, it jeopardizes the just rewards of authors and the economic health of ... nonprofit publishers. …" Givler requests answers from Google by June 20.
Givler told me that publishers were very enthusiastic when first approached by Google as early as spring 2004 about the new Google Print program. However, when they heard about the expansion of the program through the digitization of library collections, members felt that Google had "bitten off what they would find difficult to chew." Givler wondered why Google had kept it such "a deep, dark secret. It certainly has given me a crash course in how Google does business." He admitted the concept of Google Print was still "enormously seductive," especially for university presses with their usual small audiences, because it will enable these presses to reach "people who didn't know about the existence of a book they would want to read."
Bottom line—Givler doesn't have immediate plans to take legal action. What he really wants is for Google to come to the table and negotiate. The letter was sent to "try to pressure them to talk, but so far, they haven't." However, Givler said, "At this point, nothing has been done that is irreparable."
Whose Copyright Did You Say?
Publishers are not the only concerned parties. Authors also have an interest. I spoke with Kay Murray, general counsel for The Authors Guild, who echoed many of the concerns stated by publishers. Murray says authors "applaud the effort to market books with new technologies and new business models, but you can't just violate copyright on a massive scale." She too was surprised by the Google library project and wants Google to negotiate.
In the course of conversation, however, an issue emerged that may give authors a more direct role in any such negotiations. Murray said that standard boilerplate language in the contracts between book publishers and their authors include terms for copyrights to revert to authors when the publisher allows the book to go out of print. I confirmed the language with two publishers, one a small, relatively young trade press (all right, Information Today, Inc.):
In the event that the publisher allows the work to go out of print and has no plans to reprint, all rights granted to the publisher by the author hereunder shall revert to the author pursuant to notification of the author in writing by the publisher.
Another example comes from one of the nation's largest and oldest publishers, McGraw-Hill:
Section 10: Out of Print
a. When in the judgment of the Publisher the demand for the Work is no longer sufficient to warrant its continued publication, the Publisher shall have the right to discontinue publication and declare the Work out of print.
b. If the Work is not for sale in at least one edition (including any revised, reprint, abridged, or inexpensive edition) published by the Publisher or under license from the Publisher and, within 8 months after written demand by the author, the Publisher or its licensee fails to offer it again for sale, then this agreement shall terminate.
c. In the event of any termination under this section 10 or otherwise all rights granted to the Publisher under this agreement shall revert to the author (except for any material prepared or obtained at the expense of the Publisher or for rights which have reverted to the Publisher under sections 1 or 9, which shall remain the property of the Publisher).
Dealing with authors directly could prove more daunting for Google than dealing with publishers. On the other hand, the prospect of seeing authors reap the harvest for any future Google monetization opportunities might bring publishers into Google Print fast. One legal advisor mused that publishers sending their material to Google Print for digitization would have taken "an affirmative act" to bring books back into "print" or, in this case, "digital print." The Google Print program also offers publishers the equivalent of marketing and promotion by delivering book results to a box on page one of Google search results. It even offers a sales outlet through links to online booksellers and publishers' own Web sites. And all at no charge to the publisher. The publisher even gets a share in the royalties from ad revenue paid to Google for the overall search results.
On the other hand, if Google Print gets its books from libraries, mused the legal advisor, then the publisher would not have taken an affirmative action and, without an electronic copy of the work in hand, would not have the material available for sale.
If the copyrights for much out-of-print material have reverted to authors, would Google have to deal with thousands upon thousands of authors and (for the deceased) their estates? Perhaps not. At present, there are three active professional organizations representing authors' interests: The Authors Guild (http://www.authorsguild.org), the National Writers Union (http://www.nwu.org), and the American Society of Journalists and Authors (http://www.asja.org). (These organizations are all involved in the current settlement of damages from litigation over author digital rights, as covered in the NewsBreak "Post-Tasini Class Action Case Settling for Up to $18 Million" located at http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16234.)
At present, most of the membership of these organizations consists of freelance writers or authors who depend in whole or in part for income from their writing. However, one or more of these organizations might view dealing with Google on behalf of a broader universe of authors as a desirable development. They might even be willing to develop a managed royalty collection system, such as the music industry has with ASCAP and BMI. Clearly any group succeeding in this kind of effort would become the leading author representative.
In any case, it would seem that publishers have a good reason to jump into Google Print as quickly as possible.
No one from Google was available for an interview. However, a Google spokesperson sent this formal response:
Google respects the rights of copyright holders, and Google Print incorporates several ways to view books to protect copyright. For example, for books scanned from a library that are still in copyright, users will only be able to view the bibliographic information and a few short sentences of text around their search terms.
We continue to maintain an active dialogue with all of our publishing partners participating in Google Print and we encourage any publishers to contact us directly with their questions and comments.
Although we believe there are many business advantages for publishers to participate in Google Print, publishers may opt out, and their books scanned in libraries will not be displayed to Google users.
The question arises whether publishers in the Google Print program receive electronic copies of their publications even if Google acquired the work through a library. From conversations with publishers in the program, it appeared not. However, Google seems to remain open to any ideas and suggestions for improving relations with publishers, and this might resolve some problems.
Resolving the copyright issues simply and comprehensively would seem to serve everyone's advantage, but then life teaches us all sad lessons about human folly. Let's just hope that this doesn't become another class exercise.