The Google Book Search settlement

Is the Google Book Search Settlement1 (which has received the preliminary approval of the US courts) the start of a new era of access, or the start of monopolistic domination by Google? The answer depends, of course, on the lens through which you are looking. One of the largest potential benefits is the possibility of providing more access to so-called orphan works – those works still under copyright but whose copyright owner cannot be traced. Through the Google Library Project, some 7 million books from 22 libraries have so far been digitized (those which Google determined to be still in copyright were made available only in ‘snippet’ views). One million of these were digitized under agreements with publishers under the Google Partners Program, and a further 1 million were in the public domain. However, many of the remaining 5 million are out of print but not out of copyright (in fact, Google estimates that 70% of all published books fall into this category); the legality of the digitization of these titles was hotly disputed by publishers and authors (in fact, the European library participants only digitized books they determined to be out of copyright). This settlement at least gives Google permission to include these works in its program. On the other side, the legal principle of whether orphan works (let alone non-orphan, out-of-print works) can be digitized without explicit permission has not been answered. To do that would have taken years of legal wrangling, and delayed access. It seems to be a good compromise to take this first step now, rather than wait. The agreement is non-exclusive, so there is nothing in theory to prevent similar arrangements being reached with other organizations; but do they really have the muscle (and the access to library collections) to do so? Note that Microsoft is winding down its Live Book Search;2 one has to wonder, too, about the future of the Open Content Alliance.3 As before, publishers (or other copyright owners) will be able to opt out if they do not want their out-ofprint books digitized. Google will now be able to provide not just snippet results, but entire pages for viewing and printing (free of charge for US users) – up to 20% of the content, depending on the type of book, in the absence of a publisher agreement. Books in copyright and currently in print, on the other hand, now fall into an opt-in process. While they will still be included in Google Book Search unless the rightsholder requests otherwise, only bibliographic details will be displayed in the absence of an explicit agreement with the publisher. The full text of books, both in and out of print, can be purchased by users – the publisher has the right to set the price (Google will do so otherwise), and Google will pay retrospective cash payments and future royalties to copyright owners who register their interest. There is also the hope that the newly formed Book Rights Registry (BRR),4 which Google is helping to fund, will become an important player by helping to locate rightsholders and making it easy for them to include or exclude the content they own from the project. If publishers work with Google in the Partners Program, they can benefit from the extra search-driven traffic (searchers are directed to the publisher’s or booksellers’ sites to purchase the print book) with very little investment, thus opening up the market for their in-print books. It is important to remember that over 50% of the traffic in Google Book Search is coming from outside the US, particularly from areas such as South America which have been notoriously difficult for publishers to serve.5 Google has invested heavily in making the interface to Google Book Search appear in multiple languages. Free online access, within limits, is allowed within certain types of libraries. But will this part of the settlement be enough, in the long run, to enable public access, particularly access by parts of the population that have less ability to purchase 82 Editorial