Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School
The leviathan known as the Google Books project may have far reaching consequences for international copyright law, as well as, the potential violation of antitrust law and the terms of international treaties, as a recent Globe and Mail article recently reported. In light of those warnings, to state that the project (which involves the digitization of tens of millions of books) may cause a ripple effect is likely to be an understatement.
Last month the University of Toronto’s Centre for Innovation Law and Policy held a one day conference to discuss the cross border effects of the book scanning project. The aim of the conference, titled The Google Book Search Project and Canada: Cross-Border Legal Perspectives, was to discuss the proposed settlement reached by Google and the plaintiffs in the lawsuit filed against the project. The conference further aimed to shift focus away from US law and policy, which has dominated the debate, and on to the implications of the settlement for Canadian authors and readers.
The controversial proposed settlement would establish how writers and publishers are compensated for the use of works, and the ways in which Google will manage and charge for the use of their digital library. The settlement includes works from Canada, Britain, Australia and the United States, up to 2009, unless the authors have chosen to opt out. In the Canadian context, readers will have limited access to the digital library. As copyright is territorial, those foreign works which have US copyright can be scanned in the project. Alongside restricted access to the digital library there are other ripple effects which Canadians may be subject to in the wake of the settlement.
One potential ripple effect is found in the argument that class action lawsuits are not the way in which the future of the world’s copyright rules should be decided. Imagine the issue of orphaned works. As Jonathan Band mentioned at the conference, there are about 21 million books within the project for which it is uncertain who holds the copyright. In such cases the project is able to scan, make available snippets and twenty percent previews, and sell the books, all without the approval of the rights holder. The US Department of Justice has argued that this is a breach of copyright, stating the project runs the risk of turning copyright law on its head by altering the specific ‘delineation of exclusive rights to authors.’ One solution to this dispute, from the project perspective, begins with placing proceeds from the sales of the orphaned works into a trust which will then either go to rights holders should they be found or to charities at a later date. At that time the rights holders may decide what they wish to do with their copyright, such as, opt out of the project.
The idea of orphaned works also speaks to the issue of antitrust according to conference speaker James Grimmelmann. The settlement deals with orphaned works through an opt out system. In other words, the settlement presumes consent from those authors who cannot be found and thus cannot opt out of the project. Moreover, the settlement is non-exclusive in that whoever can find rights holders and get permission can offer a service similar to the project. However, in practice, the rights holders cannot be tracked down, which makes the project exclusive in a way. Grimmelmann states that the settlement creates a ‘de facto exclusive resource through the use of the court’s judgement power.’ In response, proponents of the project may argue that the settlement provides an incentive for rights holders to come forward, claim their books, opt out, and open the market for competitors.
The settlement puts Canada and other countries involved in an unusual position, questioning whether the ripple effects discussed above have the potential to tsunami. And yet, discussion of the potential effects should not ignore the potential benefits. Lateef Mtima, a speaker at the conference, points out that amongst other benefits access to a digital library of this scope may support the purpose of copyright to incentivize the production of works and allow for a wide distribution that exposes others to works which can fuel their own creations.