Suing Google Print

Also from the Beeb, but all over the Web, Google is being sued by an alliance of book publishers, the Author's Guild, over its Google Print scheme. Basically Google Print involves scanning 1000s of books, found in certain university libraries, and when you do a search, GP will deliver you a small section of the text relevant to your search, usually less than a page. In some, but not all, cases, the copyright holders have agreed this can be done, and in some, but not all, cases, the work will be in the public domain. The real controversy arises over whether GP has the right to deliver even snippets of the works in copyright without right holder permission. GP do not seek rightholdr permission in advance, but they DO give rightholders the option to "opt out" of being included in GP.

On Cyberprof, several US law profs argued persuasively that Google had "fair use" on their side; in Europe where fair use/dealing exemptions are very tight under the Copyright Directives, this seems highly unlikely. To be non technical, the policy question is really whether you think what Google is doing is more like making an entire copy of an MP3 without permission of the owner (clearly illegal) or more like looking up an index or digest to find extended references to useful texts (clearly legal.)

I was slightly amazed (and pleased) the first time I looked to find the whole of my own chapter on legal regulation of CCTV in the UK was available (from a book published by Asser Press) . Today, that chapter is no longer there, and two other book chapters of mine (with Kluwer) deliver only 2-3 page snippets. This seems either to be down to a damage mitigation stategy by Google to placate the publishers, or a closing of ranks by the publishers against Google, since one assumes Asser had already given permission to reproduction of the whole book in question, before the GP issue hit the fan.

My own feeling is that, as with the P2P wars, after a certain amount of legal skirmishing, eventually we will see this kind of global library full-text look-up-and-download being accepted by the rightsholders, but only when some mechanism is in place to get a royalty back to the publishers, by some kind of levy or license fee eventually charged against consumers. Cf the transition from illegal Napster to legal Napster, where you buy £10 a month to stream as much music as you like, and the record companies involved in contracts with Napster get their share. One of the arguments being thrown around in favour of Google is that GP is helping raise interest in out of print and back-list books which make little or no money for publishers, so why are the publishers suing?. But publishers must surely be waking up to the fact that that back list can become valuable very easily in a world of universal digital download of text. Google have tried it on, methinks, trying to get to offer this service without paying anything for it.

Lessig argues that as Google already makes copies of every text it spiders in order to deliver search results, finding GP illegal is the same as finding Google the search engine illegal for breach of copyright, and common sense revolts at this idea. But this is not necessarily true, as most jurisdictions now have exemptions allowing for the making of transient rather than permanent copies for "technical reasons". Search engines may reply on thse rather than "fair use" to protest their legality. The question is if such exemptions, mainly tailored to legalise caching, are phrased widely enough to cover what search engines do, and how transient Google's spider copies are. Copies are retained for days, sometimes weeks in Google's cache - can these really be regarded as transient?

In any case, in the UK, The Copyright and Related Rights Regulations 2003 implement the "temporary acts of reproduction" exception provided for in Article 5(1) of the Copyright Directive by inserting a new Section 28A into the 1988 Act, as follows:
"Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -
(a) a transmission of the work in a network between third parties by an intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance.".

Google search engine would fail to get the benefit of this under (a) for sure. And the "economic significance" is also arguable - Google don't get paid for GP, but they do make money out of adverts on the main search site, depending how many people click through on advert links placed next to searches. But (b) is the heart of the argument in Google Print.So it may all, in fact, come back to fair use/fair dealing. We in Europe may need to revisit these exemptions yet again.