OUP seeks Congressional action

Wednesday 01 July 2009 | By Heidi Scott, Gosh! Media Copywriter

The latest twist in the Google Book Search saga emanates from the distinguished publisher, Oxford University Press (OUP). Writing in the Chronicle of Higher Education, Tim Barton, President of Oxford University Press Inc, has urged Congress to act on the issue of 'orphan books' – tomes that are still in copyright but have no clear owner – to prevent Google having exclusive rights to use them.

For those of you unfamiliar with the earlier chapters of this long-running tale, Gosh! Media will provide a quick review…

When they established Google back in 1998, its co-founders Larry Page and Sergey Brin wanted to make the world's information more accessible and useful, decent chaps that they were. Their long-held dream of getting heaps of books on line finally began to take shape in 2004 when Mountain View launched Google Book Search. Since then, more than 20,000 publishers have joined Google's Partner Programme, allowing readers to preview the books they find before buying them. Google scanned the works found in some of the world's best libraries to allow 'snippet' views of in-copyright works, which it believed constituted 'fair use'. Authors, agents and publishers took a different view, however. Google Book Search sparked a furore in the publishing world concerning copyright infringement that led to lawsuits against Google in 2005 from the Authors Guild and the Association of American Publishers (AAP). This dispute finally looks likely to be settled. In October last year, a $125 million agreement was announced that will allow Google, authors and publishers to split between them any revenue raised by Book Search. Also as part of the agreement, Google is funding the establishment of a Book Rights Registry, managed by authors and publishers, that will work to locate and represent copyright holders. Because the agreement is the result of a US lawsuit, the services will only be available to those who access Google Book Search in the United States. Outside the US, the user experience will be the same as it is today, with search available for the full text of books and snippets of in-copyright works viewable, but without the facility to preview or purchase books on line, unless these services are authorised by the rightsholder. Now publishers and authors have until September 4th to decide whether to be part of the settlement, and its fate will be determined in court on October 7th. Just to add a little more spice to the story, back in April the New York Times revealed that the US Justice Department was investigating whether the deal violates anti-trust laws, so the outcome is still uncertain.

Given the complexity of copyright issues, it is quite astonishing that common ground has been found at all. In the official Google blog in October 2008, David Drummond (Senior Vice President, Corporate Development, and Chief Legal Officer) said the agreement was "truly groundbreaking in three ways". He continued, "First, it will give readers digital access to millions of in-copyright books; second, it will create a new market for authors and publishers to sell their works; and third, it will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers".

Let's skip back to Tim Barton, OUP USA President, writing in the Chronicle of Higher Education. While he acknowledges the importance of on-line publishing, admitting that "If it's not online, it's invisible", Barton is unhappy about the detail of the agreement. He argues that the settlement is a step forward in terms of solving the problem of orphan works, for which professors cannot include a chapter in a student course pack nor a publisher include an excerpt in an anthology. "Making those books available again," he admits, "is a clear public good." But he goes on to say, "Google's having exclusive rights to use them, as enshrined in the current settlement, however, is not." Barton argues that if the parties involved cannot solve this major problem, then Congress should pass orphan-works legislation to give others the same rights as Google. He describes this course of action as "an essential step if Google is not to gain an unfair advantage".

So, will Larry and Sergey's dream be fully realised? It looks unlikely in the foreseeable future. As the settlement allows considerable flexibility in terms of participation by copyright holders, many publishers who decide to take part may choose other means of electronically publishing their works. In the words of Tim Barton, Google Book Search could end up resembling "a Swiss cheese, with plenty of holes reflecting rightsholders' decisions to republish their work in other ways".

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