The decision by a US Federal Court judge last week to reject a $US125 million settlement between Google Books and the publishing industry allows authors to protect their copyright and prevents Google from dominating the market.
It also highlights the need for an alternative model - such as a centralised content registry for books - which allows access through a public source instead of a large corporation like Google.
Federal Court Judge Denny Chin objected to the proposed settlement because it would have given Google a privileged, near-monopoly position in the book market.
The settlement represented the culmination of more than two years of negotiations between Google Books and US-based authors and publishers.
Had it been approved, the deal would have given Google Books the green light to digitise every published work in history, except in cases when the work’s copyright holder opted out of the online repository.
As an author or publisher anywhere in the world, you would have been part of and shared in that proposed settlement deal, unless you actively opted out.
The deal also proposed to allow Google to copy and make available ‘orphan’ works – where the copyright owners had not yet been found — and exploit those works without gaining permission of the copyright owners.
This would have retrospectively legitimised the copying of about 10 million books, including copyright books Google had already scanned and stored without anybody’s permission.
These books include many of the most important books in the world’s repertoire.
Author and publisher representatives party to the proposed settlement agreed that the $US125 million payment was sufficient to cover all the past copying Google had done without permission. But on the face of it, it is not a large amount for Google to pay retrospectively for such a valuable asset.
Google copied and stored all of these books in order to make them a resource for their Google Book business. The settlement would have approved that past copying and sanctioned it, and in the process, turned the copyright of individual authors and publishers upside down.
The principle of copyright is that if you create something original you exclusively and automatically own the right to that creative work. Nobody can exploit your copyright without your permission and you can give your permission for copying or communicating your book for a payment or for free according to your choice as the author.
The court in the US has upheld that principle of a creators right in their intellectual property.
For the copying and storing of books by Google in the future, the proposed deal would have required permissions from individual authors and publishers. But Google would have received 30% of the revenue with the rest to be shared among the author, the artist and the publishers – the copyright owners in each book.
I think Google would have been quite satisfied with their share of the revenue.
It’s important to recognise that Google Books has attempted to side-step real dysfunctions in access to copyright books online. Building a legitimate online market for books is indeed a worthy aim, but this proposed deal has serious problems.
The main issue is that it would put Google into an effective position of market dominance.
Judge Chin left open an avenue and effectively proposed that there was an agreement that could be made the parties that would be lawful. But it had to address these problems around the opt-out of the authored work.
Many authors and publishers recognise the power of Google and see that it is useful to get their content out to audiences that they couldn’t otherwise reach. And Google is making an attempt to provide better access than has been provided so far by the authors and the publishers themselves.
So there are the makings of a deal there, but this particular one is not right. Google will need to get copyright permissions so that authors and publishers have the choice to opt in for past copying.
In any reasonable settlement, Google would not have such easy access to the world’s orphan works.
Losing public control?
There are other issues of public policy and public interest in a deal like this, concerning access to one of the most valuable resources in the world: the collected books of mankind.
Until now we have managed access to these books in the public interest not only through the book industry but through a public library system, which guarantees access to books in a public and educational library system that serves the public interest.
Now Google, a large corporation, would in effect take over that role of gatekeeper to access to books in the online networked environment.
Google’s management may be benign at the moment, but it is a corporation with profit as its raison d’etre. The settlement would have given a corporation tremendous power and control over our most precious resource - knowledge. Google may in the future change the price and the terms and conditions for access to the millions of books that they hold in Google Books.
To give over effective control of access to books online – a powerful central role in the knowledge economy — to Google raises important public-interest questions about how access to books can be guaranteed.
Another issue is the question of privacy.
We have seen Google, acting in its commercial interests, come to accomodations with governments about its services. Google Books has information concerning who is accessing which books, and that is sensitive private information.
Now, if commercial, government or law enforcement or security interests or agencies wanted access to that material – who is reading what - would Google protect that information?
We would be wise to consider how Google would use that information in its corporate interests.
An alternative model?
The idea that Google will dominate control of all the world’s information and access to all the world’s books gives rise to serious questions of social justice.
Whoever controls the flow of information controls society. It is Google’s aim today to aggregate access to all the world’s information.
Google should be given credit for their attempt to organise information and content online, and they have enjoyed great success. But they should not be the only effective channel for that.
It’s important that authors and publishers also deal directly with audiences through their own supply chains. The creative industries themselves should work with government to develop a central content registry linked directly to content held in creators own databases.
Then consumers can use the content registry to legitimately access any content seamlessly with the rights to copy and repurpose it. Such a registry should provide access to copyright and copyright free content.
A creative industries content registry, linked directly to the content and the rights to use it, would provide high-volume low-cost access to creative content from the people who actually create and own that content.
A public registry would enable content creators and producers to deal directly with their audiences and give them access to works on their own terms, whether that’s for free or for a payment.
That way, the creators can control their own content. Authors and publishers large and small will be able to make their content available and consumers will have easier access to the content they need in an information society.