The Google Book Project is an attempt on the part of Google and several libraries in the United States to digitise printed material and make it available to a broad audience. To date Google has digitised 12 million titles, many of them still under copyright protection. Participating libraries (none in Canada) will receive preferential access to the content, while others (public institutions, private individuals) will pay access fees of varying amounts. In addition, Google will have the ability to offer digitised titles for purchase. In a separate agreement with publishers and copyright holders who objected to Google’s profiting from their intellectual products, a Settlement Agreement was proposed in 2008 (subsequently amended in 2009) that offered compensation to rights holders. The amended agreement was presented to Judge Denny Chin of the US District Court, Southern District of New York. The Judge rendered an opinion on 22 March, 2011.
Judge Chin ruled that the Settlement Agreement does not meet the test of being “fair, adequate and reasonable”.(2) The proposed settlement does not address the concerns of copyright owners and would create an unfair advantage to Google over any possible competitors. The proposal was challenged by several authors or their successors, publishers, academics, the governments of the United States, several states and foreign governments (500 in all). Moreover of the class of ‘persons’ party to the settlement, more than 6800 opted out of it, signifying their disproval of its terms. Of the many objections three stand out: the implied reversal of onus for making copyrighted material available, the approach taken to ‘orphan works’, and the rights of foreign copyright holders.
The Settlement Agreement sought, in the words of Alessandra Glorioso, to reverse the copyright onus which requires the party seeking to publishing material obtain permission to do so; instead, Google proposed that copyright owners would need to register with an agency established under the Settlement to secure their legal rights.(4)
‘Orphan works’ are those materials for which a copyright holder cannot be identified or contacted. The Judge was of the opinion that rights regarding orphan works were “matters more appropriately decided by Congress than through an agreement among private, self-interested parties.” (23).
The governments of France and Germany (and the Canadian Association of University Teachers) were leaders in objecting to the Settlement with respect to foreign works. They argued that it provided Google the opportunity to digitise works produced in those countries and housed in the United States under the reciprocal provisions of the Berne Convention in contravention of international treaties and domestic laws. The Judge agreed, stating that the matter regarding copyright be left to Congress. (44)
The Judge concluded that the Settlement is not fair, adequate and reasonable and determined that the Settlement Agreement be amended to provide for an ‘opt in’ procedure rather than an ‘opt out’ one which would result in a reduced Google Book Project.
See the judgement at http://www.scribd.com/doc/51327711/google-books-settlement