In the pipeline: another Google Copyright Story

One of JIPLP's contributors, Jaime Espantaleón (see "Does private copying need an update in the UK?", Journal of Intellectual Property Law Practice, February 2008; 3: 115 - 124, abstract here), is writing another article for the journal. This little teaser gives a flavour of his thoughts on Google Book, the subject of his next article:

Another Google Copyright Story
"I very much like to pick up chestnuts, old rags and specially papers. It is pleasant to me to pick them up, to close my hand on them; … In summer or the beginning of autumn, you can find remnants of sun-baked newspapers in gardens, dry and fragile as dead leaves, so yellow you might think they had been washed with picric acid. In winter, some pages are pounded to pulp; crushed, stained, they return to the earth. Others quite new when covered with ice, all white, all throbbing, are like swans about to fly, but the earth has already caught them from below. They twist and tear themselves from the mud, only to be finally flattened out a little further on. It is good to pick up all that” (Jean Paul Sartre).
This excerpt is from Nausea, translated by Lloyd Alexander, and it can be read freely online via

Sartre died in 1980. Under European copyright laws, which are harmonized by the EU term directive, the book is still in copyright, since this monopoly control right which is given to authors runs for up to 70 years after death.

Those laws grant inter alia Sartre’s successors an exclusive right to authorize or deny the reproduction of Nausea and the right to make the passage quoted available on the internet (i.e. to display it online on someone’s computer).

The scope of the reproduction right in Europe includes even copying 11 words of a book if “the elements thus reproduced are the expression of the intellectual creation of their author,” as the European Court of Justice ruled in 2009 in the Infopaq case.

So why may we access a considerable portion of the pages of Nausea on the internet for free?
(A short dialogue opens between a fat lawyer in jeans and an old, hunch-backed judge with a wig)

Lawyer: Has Arlette Elkaïm-Sartre, Sartre’s child, struck a deal with Google?

Judge: Not likely.

Lawyer: Perhaps the publisher?

Judge: Gallimard would not be able to authorize such use, even if it wanted, since Sartre died before the promulgation of the right of making available online and French laws require the legal assignment to designate specifically the rights assigned to an editor.
The reason we may read Sartre’s diary of anxieties and that I can retype some of it is that Google may have believed it was within its copyright prerogatives. The problem is that it is not.

International copyright laws generally limit the monopoly rights of authors to allow the public to access and learn from the produce of the intellect, but limitations are circumscribed to non-commercial cases, such as educational and research copying, library preservation, citation. Yet Google earns revenue from advertising around its search book site.

The Mountain View company knows its boundaries, as evidenced by an amended class-action settlement agreement it reached in 2009 with US writers and publishers, which condones the digitization of more than 10 million copyright books, in-print and out.

Approval of Google's scheme is still under review by US judge of the Southern District of New York, Denny Chin.

The agreement provides Google with a prospective right to keep copying the same matter and make it available, in whole or in part, to US internet users, whether they pay for it or not. Users will also be able to print books, download them or order paper editions.

In exchange, authors get a cut of 70% of all sales proceeds in the US minus a 10% commission charged by Google and eventual taxes, in addition to a $45 million settlement in compensation for damages.

Books that no longer have copyright are in the public domain and are not covered because nobody can assert any intellectual property rights to them.

In the US the copyright duration varies depending on whether the book was published before or after 1923 and between that date and 1978.

If the oeuvre was published before 1923, such as T.S. Eliot’s poem “The Waste Land” it is public property. In Europe, the same poem is still subject to copyright.

If, on the contrary, it was published between 1923 and 1978, and registered with the Copyright Office, it could be subject to renewals which may extend protection to a total of 95 years from publication. Publications after 1978 enjoy the same term protection as in Europe.

The bulk of the material that Google will offer is composed out-of-print books, i.e. those that publishers have not found profitable to re-edit.

Many groups of authors and publishers around the globe have criticized this agreement. They seem to prefer culture to be hidden rather than duplicated.

In Europe the proposed settlement has stirred emotions and provoked the ire of French, German, Italian, Spanish and other European authors and publishers, as well as the governments of France and Germany.

The reason is that the settlement includes books first published in the US, books registered in the US before 2009 and those published in the UK, Canada and Australia.

Since registration with the US Copyright Office is currently required for the enforcement of copyrights, and that it was a prerequisite for enjoying copyright at all before the US adhered to the Berne Convention for the Protection of Literary and Artistic Works in 1988, virtually all the English language books in the world are covered by it.

The arrangement is particularly interesting because, first, it creates a new entity, a Registry, financed by Google with $34.5 million, which will manage royalties from Google sales in a similar fashion to the US Copyright Office’s allocation of remuneration from the administration of compulsory licences for cable and satellite retransmission of television and radio broadcasts.

Secondly, it binds non-US authors, unless they opt out, who did not directly negotiate with Google and the parents of orphan works -- book writers who are missing.

The means used in obliging non-represented parties is that of the US procedural rules on class actions, which allow the effects of settlement agreements to apply to “class members”, persons representing closely interrelated interests which constitute a class.

This mechanism is in my view permissible under international copyright law. In fact, in the Nordic countries, this way of tying non-represented rights-holders has been in place for decades through legal provisions in the Copyright Acts regarding extended collective licences.

Such licence provisions allow collecting societies representing a considerable number of rights-holders in the same kind of work categories to conclude collective agreements covering specific copyright exploitations with commercial users and extend their effects to equivalent non-represented rights-holders.

The UK Parliament failed to pass this type of licence into law for orphan works in the Digital Economy Act 2010 because both Houses of Parliament could not agree to it.

The Google class action settlement is indeed an extended collective licence where the legal provision that supports it is found in the Federal Rules of Civil Procedure pursuant to Title 28 of the United States Code.

European countries are now rushing to keep up with the digitization pace set by Google. The European Commission has established a Digital Agenda division, emphasizing “the urgent need to allow for similar projects [to Google books] to develop in Europe”, and is preparing copyright legislation to handle specific digital issues arising from the internet.

But European libraries do not have the Google patent invented by Francois Marie Lefebvre and Marin Saric in 2004 which creates 3D imagery of books using stereoscopic cameras, without which the scanning process is more expensive and strenuous.

Some projects in place are Europeana, the European digital library, and a private-public partnership named Arrow.

The webpage of Europeana crashed on its first launch date and European states are reluctant to share their cultural heritage with it. Arrow, the sister of the Registry, is a cooperative effort by dozens of collecting societies in Europe, representing the reprographic rights of writers and publishers, which attempts to interconnect databases containing information in more than 20 languages on authors and their books.

At a national level a success story is told by the Norwegian national library, which has formed an alliance with literary and non-fiction authors to display online full copies of in-copyright national and foreign books from the 1990s, in accordance with an extended collective licence model.

It is uncertain whether Google will ever reach a comparable collective understanding in Europe for its search book enterprise.

European online users’ ability to preview Nausea’s excerpts is a public gift, though illicit. This is the case in the US, too, until Judge Chin decides to end the suspense.

In the meantime I can flap my eyelids in fatigue, looking at a glimmering screen full of printed letters. It is good to read all that ...".

Jaime is a lawyer, specialized in Copyright and ICT Law, who takes an interest in audiovisual works.

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