European laws present challenges for Google Books

MOUNTAIN VIEW, Calif.--As Google closes in on a November 9 deadline to submit a revised settlement in the Google Books case, it continues to pull out all the stops to reassure the world it has the best of intentions.

The controversy over Google's settlement with groups representing book authors and publishers rages on, almost a year after it was first reached. After Google was sued in 2005 for digitizing books without explicit permission, it reached a proposed settlement in October 2008 that would give it unique rights to scan out-of-print yet copyright-protected books, exciting some librarians but raising the ire of many within the publishing and literary communities.

Nevertheless, Google has made painstaking attempts to engage with its enemies in the publishing world. Dan Clancy, engineering director for Google Books, has traveled the country meeting with opponents and supporters, patiently explaining Google's position and preaching the value of a publicly available archive of digital books.

On Thursday, Google hosted a group of four librarians from Europe, where Google has signed partnership agreements with five libraries to discuss the benefits of the project. The settlement is obviously a U.S. matter, but the contentious issues in the settlement do not exactly apply to Europe, because Google says it has not scanned out-of-print but copyright-protected books published in Europe.

Therefore, in Europe Google has only scanned public domain works held by its library partners and books for which it has negotiated scanning rights with rights holders. Still, the settlement process is being watched closely by European authors who have had books published in the U.S., as well as European librarians who are a little jealous over the resources their American counterparts could enjoy under the settlement.

"It's like everyone in the U.S. gets to use cell phones and I'm stuck with a landline," said Sarah Thomas, Bodley's librarian and director of Oxford University's Library Service. "It's a tremendous barrier to advancing knowledge."

Make no mistake: getting this settlement finalized is easily one of Google's highest priorities of the year. There are financial incentives--Google will host links to book stores and place ads on the search result pages--but this is also a core part of Google's mission to organize the world's information.

Even the hardiest Google opponents agree that a digital library of the scope Google is proposing will have tangible benefits for the world. This is especially true for the European libraries, which store books dating as far as the 17th century that are crumbling with the advance of age. Few people are able to see those books because of their value and the remoteness of their location, but putting them online could allow the world to read books they would have once traveled thousands of miles to see, allow researchers from around the world to study their contents, and preserve the knowledge for future generations.

But some, such as German Prime Minister Angela Merkel, are wary about a single company controlling such a library. "The German government has a clear position: copyrights have to be protected on the Internet," The Guardian quoted her as saying last week.

In any event, at the moment European libraries are on the outside when it comes to unlocking the knowledge stored in the millions of out-of-print but copyright-protected books on their shelves. Google's argument all along in the U.S. has been that it was allowed to scan those types of books under fair-use laws, which was disputed by authors and publishers in 2005 but authorization to do so is a key part of the proposed settlement.

Copyright laws vary across Europe, but the concept of fair use generally does not exist, and most books are protected by copyright for 70 to 80 years after the death of the author, the librarians said. Historical works are in the public domain, but that's just a fraction of the overall number of books stored in libraries throughout the world.

Out-of-print books will only be available as limited previews to searchers with links to stores at which they can be bought, but those books will be part of a database that is available to researchers and librarians through an institutional subscription. Researchers outside the U.S. won't have access to that database, which means U.S. libraries and universities would have an advantage.

"We ask our researchers what they want, and they say, 'we need a Google Books European settlement. We need access to books that are out of print but are still in copyright,'" said Klaus Ceynowa, deputy director general for the Bavarian State Library in Germany.

Manuela Palafox, head of digital editions at the University of Complutense of Madrid, Spain, took it a step further. "The most important thing in Europe is to review our copyright laws. We need to adapt it to the digital age."

This, of course, is part of the opposition to Google's settlement in the U.S. Instead of leaving it up to Congress to reform U.S. copyright laws to settle once and for all whether digitizing out-of print but copyright-protected books should be allowed, the settlement is granting that unique sweeping right to a single corporation, and forcing others who may want to digitize these books to cut licensing deals with an organization funded by Google and staffed by directors picked by the groups representing authors and publishers.

So while Google works feverishly on a new settlement in the U.S. ahead of a November 9th deadline, its legal battles may be just beginning. Chinese authors are reportedly gearing up to oppose Google's efforts, and its mission of organizing the world's information may be stymied if European copyright laws forbid the digitization of a huge swath of books published in the last century.