Monthly Archive for December, 2009

Background

In 2004, Google started a mass digitisation programme of books in the collections of several libraries and protected by U.S. copyright law. In response to this, several authors and publishers brought a lawsuit against Google, claiming that its digitisation activities without permission infringed their copyright. Google subsequently argued that its digitisation programme and display of a few lines of these books is permitted under the U.S. copyright law’s doctrine of “fair use.” Instead of resolving this legal dispute, Google and representatives of rights owners and publishers have come to an agreement.

UPDATE: The New York Times has reported that as of 24/09/09,  the Settlement was officially withdrawn from the New York court where it was being decided. Reasons for the withdrawal include objections from the US competition authorities and concerns raised at a congressional hearing on 10 September (PDF)

Whilst the settlement may be withdrawn from the time being, issues that it has raised may be reinvigorated in the future, therefore JISC continues to be very keen to gather views from the HE/FE community.

The Google Book Settlement

The Google Book Settlement applies to US published works including books, inserts that are contained in books, government works and public domain books, published on or before 5^th January 2009. The settlement does not include works published after this date. It will provide a route for copyright owners of out-of-print books to opt out of the settlement and submit claims to Google, via the Book Rights Registry (BRR).  The BRR is part of this settlement and will be established by Google to distribute its revenues, finding rights holders, settling rights disputes and, where authorised by the rights-holder, exploiting third party rights, including works for which the rights holders are unknown or cannot be traced “orphan works”. Works which are still in print will require copyright holders to opt in. The settlement will also allow Google to sell advertisements and digital versions of these books, while paying royalties of 63% to copyright owners as well as a share of revenue collected from advertising via the BRR.

In detail, the settlement, aimed at US users, allows Google to offer four primary services:

1. Previews

All US users will be able to search Google’s entire search database for digitised books free, and view up to 20% of text from out-of-print books. (There are special rules for special categories e.g. fiction vs. non-fiction.).

2. Consumer purchases

Consumers may buy perpetual online access to the full text of out-of-print books. In-print books require that the copyright owner “opt in”.

3. Institutional subscriptions

Users within an institution may view the full text of all the books in the Institutional Subscription Database (ISD), which will include all the books in the in-copyright but out-of-print category.

4. Free Public Access Service

Google may provide Free Public Access Service to not-for-profit Higher Education Institutions and Public libraries on specified conditions. In the case of each Public Library, no more than one terminal per library building.

In a recent development, Google has announced that it will be sharing its online collection of out-of-print works with other books re-sellers and Amazon who will be able to provide access to these works online.

More information about the settlement can be found on the Google Book Settlement website.

An explanation guide [PDF] to the issues for libraries has been provided by OCLC (Online Computer Library Center) together with links to further information.

There are other forums for discussion on the Settlement. The Public Index is a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School. It is a discussion site dedicated to the Google Book Search lawsuit and settlement.

Implications for Researchers and Academics

A number of organisations and umbrella organisations in the US and internationally have produced statements about the Google Book settlement and its potential implications for researchers and academics, including raising concerns about territory, privacy and censorship issues.  The following points (PDF) have been made by EBLIDA European Bureau of Library, Information and Documentation Associations, supported by LIBER and IFLA (International Federation of Library Institutions and Associations).

Territoriality: EBLIDA has raised concerns about the territorial limits of the settlement. Because this settlement is only valid under US law and therefore applicable only within the US, Europeans will not be able to access the full-text view of any texts, only the display and snippets views. This means that UK researchers will be at a disadvantage to their US colleagues in not being able to view full text works nor the complete database of scanned books.

Control of information by one corporate entity: It is estimated that the Google digitisation programme may amount to over 30 million books. The scale of this programme and Google’s 5-year lead means that other projects will find it difficult to mount competitive digitisation programmes. This means that a large proportion of the world’s heritage of books in digital format and associated metadata will be under the control of a single US corporate entity.

Long-term preservation: There do not appear to be any provisions for the long term preservation of the entire database of digital files of all the books nor any stipulations referring to the legal deposit of this database in the instance that Google no longer wishes to preserve it.

Pricing policy: The economic terms for the Institutional Subscriptions Database will be based upon the realisation of revenue at market rates, and the realisation of broad access by the public, including institutions of higher education. It is crucial at broad access is given full consideration in this settlement to ensure that the beneficial societal effects of the project are realised.

Censorship: According to the settlement, Google may exclude 15 % of scanned books in copyright, but out-of-print from the database. This may amount to the exclusion of 1 million books. Political pressure exerted on Google may result in books being removed from the database. Such exclusions must be published together with the reasons for their exclusion.

Privacy: Some of the services offered imply that Google will collect and retain information of users’ activities. However, the Settlement does not specify how users’ privacy will be protected and in particular how that data may then be used.

Research: The database containing the digital copies of the scanned books represents a unique corpus for computational analysis and research. Google and two institutions may host this Research Corpus for purposes of “non-consumptive research” by “qualified users”. (“Non-consumpti­ve” means that the text is not accessed for display or reading.) The host site has the authority to decide whether a user is qualified and whether the research is non-consumptive. There is no mechanism to challenge the host’s decision and in consequence, certain types of research may be privileged. There seems to be no possibility for foreign researches to get access to the database for research purposes.

Contracts vs. statutory exceptions and limitations: The settlement does not stipulate that it’s terms will not supersede legislated users’ rights, including specific and general exceptions for libraries and users, and any existing or new approaches to making orphan works accessible.

With regards to the specific implications for UK researchers and academics, in addition, the following should be considered:

Restrictions on access to the US complete database of books  may lead to particular problems when UK researchers are working collaboratively with US partners.  If such a project was to be undertaken in the EU, a similar settlement/ agreement would need to be reached in each member state in order to facilitate access to the scanned books.

UK authors will also be directly affected by the settlement as a consequence of their books being published in the US and/or because the UK is subject to the same international treaties as the US. Subsequently, UK authors and/or publishers will be entitled to receive appropriate royalties for their works, or alternatively, they have the right to opt out of the settlement if their works are out-of-print and opt into the settlement if their works are in-print.

It is currently unclear what the implications will be under this settlement regarding US originated works published in the UK and digitised by UK libraries and other research organisations, including orphan works.

A number of organisations and umbrella organisations in the US and internationally have produced statements about the original Google Book settlement and its potential implications for researchers and academics, including raising concerns about territory, privacy and censorship issues.  The following points (PDF) have been made by EBLIDA European Bureau of Library, Information and Documentation Associations, supported by LIBER and IFLA (International Federation of Library Institutions and Associations, which have been slightly revised to reflect the proposed new settlement.

Territoriality: EBLIDA has raised concerns about the territorial limits of the settlement. Because this settlement is only valid under US law and therefore applicable only within the US, Europeans will not be able to access the full-text view of any texts, only the display and snippets views. This means that UK researchers will be at a disadvantage to their US colleagues in not being able to freely view full text works nor the complete database of scanned books. However, Google’s willingness in the revised settlement, to allow authors to provide access to works under Creative Commons Licences, may provide UK researchers and academics with free access to certain works.

Control of information by one corporate entity: It is estimated that the Google digitisation programme may amount to over 30 million books. The scale of this programme and Google’s 5-year lead means that other projects will find it difficult to mount competitive digitisation programmes. This means that a large proportion of the world’s heritage of books in digital format and associated metadata will be under the control of a single US corporate entity.

Censorship: According to the settlement, Google may exclude 15 % of scanned books in copyright, but out-of-print from the database. This may amount to the exclusion of 1 million books. Political pressure exerted on Google may result in books being removed from the database. Such exclusions must be published together with the reasons for their exclusion.

Privacy: Some of the services offered imply that Google will collect and retain information of users’ activities, although Google has subsequently been keen to emphasis that “The revised agreement includes language that specifies that Google will not share any private information with the Registry without valid legal process. Google also has a robust privacy policy (http://books.google.com/googlebooks/privacy.html) that describes how we treat personal information when you use Google Books. We also addressed our privacy commitments (http://www.ftc.gov/os/closings/090903bcpgoogleletter.pdf) directly to the Federal Trade Commission.”

Research: The database containing the digital copies of the scanned books represents a unique corpus for computational analysis and research. Google and two institutions may host this Research Corpus for purposes of “non-consumptive research” by “qualified users”. (“Non-consumpti ve” means that the text is not accessed for display or reading.) The host site has the authority to decide whether a user is qualified and whether the research is non-consumptive. There is no mechanism to challenge the host’s decision and in consequence, certain types of research may be privileged. There seems to be no possibility for foreign researches to get access to the database for research purposes.

Contracts vs. statutory exceptions and limitations: The settlement does not stipulate that it’s terms will not supersede legislated users’ rights, including specific and general exceptions for libraries and users, and any existing or new approaches to making orphan works accessible.

With regards to the specific implications for UK researchers and academics, in addition, the following should be considered:Restrictions on access to the US complete database of books may lead to particular problems when UK researchers are working collaboratively with US partners.  If such a project was to be undertaken in the EU, a similar settlement/ agreement would need to be reached in each member state in order to facilitate access to the scanned books. UK authors will also be directly affected by the settlement as a consequence of their books being published in the US and/or because the UK is subject to the same international treaties as the US.

Subsequently, UK authors and/or publishers will be entitled to receive appropriate royalties for their works, or alternatively, they have the right to opt out of the settlement if their works are out-of-print and opt into the settlement if their works are in-print.

It is currently unclear what the implications will be under this settlement regarding US originated works published in the UK and digitised by UK libraries and other research organisations. In terms of orphan works, (works for which the rights holders are unknown or cannot traced), proposals in the revised settlement outline that Google intends to use settlement funds to trace rights holders, and subsequently allocating any money collected which has not been claimed to good causes after 10 years. There remain issues over any interest that Google may make during this period related to any unclaimed funds, as well as the relationship between this settlement and any UK or European-based legislative based solutions which are currently being discussed for example in the UK’s Digital Economy Bill.