Google Books – A Different Kind Of Copyright Infringement?

I am very grateful to Robin Fry, a copyright expert and Partner at Beachcroft LLP, one of the largest national commercial law firms in the UK, for his comments on Google Books. I had contacted Robin Fry following release by Beachcroft LLB of a press release calling for an ovehaul of the provisions in the Digital Economy Bill  (- Beachcroft LLP’s press release can be read here: http://www.beachcroft.co.uk/article.aspx?id_Content=1461).

As many will now know the Digital Economy Bill has, in my opinion, a wrong-minded approach to issues of copyright and  piracy and, as a previous blog posting of mine asserts, the UK government is at present engaged in a peculiarly misguided attack on so-called ‘piracy’ on the one hand whilst on the other remains silent about Google Books when other key European leaders (Germany and France) have, on behalf of their writers and authors,  opted out of the Google Books settlement. It is on these main assertions in my original blog (below) that I asked Robin Fry to comment, and as Robin Fry’s remarks below demonstrate, the Digital Economy Bill does nothing to clear up the confusion:

Robin Fry: “There is a real danger that publishers with large back-catalogues may enter into global licensing deals with Google without being certain that the original author-publisher agreements permit this. Authors could then use the new procedures contemplated by the Digital Economy bill to challenge both Google and the users who thought they were accessing these texts legitimately. 

“The Digital Economy bill does nothing to free up content which had been licensed for the old economy apart from for ‘orphan works’ which are still not defined.   It’s surprising that there should be such an obsession with file-sharing when far greater damage may be caused to authors whose copyrights are stripped away and sold on to Google without their permission. Isn’t that just a different kind of copyright infringement? ” [Ends].

Once again, my thanks to Robin Fry for these fascinating comments. Full details of Robin Fry’s work can be found at: http://www.beachcroft.co.uk/person.aspx?id_Content=769

Google Books – Did You Have A Say?

The many and varied reports over the last few days detailing the revised Google Books settlement have made for interesting reading.  There have been assessments that give the settlement a general welcome; many that accept it as the best possible compromise in a situation in which the power of Google is recognised as being almost unstoppable; and one or two that reject it as merely tinkering with the original. There are  many US analysts who hold that the settlement still does not have a chance of obtaining the approval.  Time will tell.

For me, one striking element of the entire process has been the role of the various trade organisations on both sides of the Atlantic who have acquired from somewhere a mandate to enter into negotiations adn agreements with Google, and then agree and sign up to a settlement supposedly on behalf of publishers and authors in the UK, but in reality on behalf of those across a large slice of the English language publishing world.  

Publishers obviously purchase and hold rights in various ways over the works they publish, and as such have sway over their property. They are free to join organisations and mandate those organisations to represent their interests. Authors likewise can join membership and trade bodies and participate in their decision-making processes.  But that does not mean that such organisations somehow own more holistic, generalised rights to define and control the very notion of copyright itself, and the laws that protect it. 

Authors of out of print works can opt out of the Google Books process, but that is not the same as having a tacit, legally enshrined and enforceable copyright over their work. The same is true of the so-called ’orphaned’ works,  and the sense I get of this is that the tacit situation could soon be - without any new law being passed by elected representatives in the UK - that control is something you have to actively opt for rather than having a tacit and passive right to enjoy.  This is like doctors and nurses organisations rather than elected law makers deciding that your organs will be donated after you die  unless you’ve opted out when alive.  It is a subtle shift that undermines a once basic right. OK, so you will be paid if Google have copied your out of print work without telling you, but that means, as many others have pointed out, that Google could have the right to grab your property, sell it without telling you and then give you some of the proceeds if you find out.        

Where does this type of mandate originate, and why, given the importance of the creative industries to the UK economy, hasn’t the UK government taken an interest in this issue in the same way as the US adn other across Europe, who are now exempt from the proposed agreement? Is this the kind of passivity in terms of  digital content that our cherished creators can expect from the UK government going forward?  This is a government that on the one hand is proposing legislation to remove internet access from those who download stuff  illegally, whilst at the same time remaining completely inactive when a subtle undermining of your rights as a creator over your work  is taking place before their very eyes. 

We have a government in the UK that is at present trying to get the government’s of other countries to sign-up to a unified code that would limit the excesses of the globalised banking world. Maybe we need such a process to properly define and settle rights in terms of global digital markets, and to impose limits on the excesses of those who abuse those agreements. Not the individuals who pirate stuff, but the multi-nationals who pirate stuff.

I don’t buy Google’s sudden altruism, this is a commercial activity not a charity, and an example of  power being wielded to undermine laws and legal principles that are inconvenient to its model of how the ‘net can be monetized for its own benefit.