Although the Public Policy Update was on the schedule well in advance, the addition of a representative from Google to speak about Google Book Search and the related settlement was a last minute development. Dan Clancy, Engineering Director for Google Book Search, began with a brief presentation on the Google Book Search project and quickly moved into a discussion of the settlement. Clancy spent much of this time attempting to clarify some of the details of the settlement agreement, admitting that the agreement is a very complex document.
He noted that the parties to this settlement include all U.S. copyright holders for books that have been scanned or that Google is intending to scan; it does not cover books published after 1/5/2009. For books published after this date, Google will be able to do direct deals with the publishers. Clancy stressed that rightsholders have a choice about whether or not to participate in the agreement, that they can opt out of the settlement and participate in Google’s partner program or remove books from the database altogether. Through the agreement, Google is authorized to scan and index in-print books, but they can not display any of the material unless the rightsholder gives explicit rights to do so. For out-of-print books, display access is turned on by default; Google then pays into the newly created Books Rights Registry from which money will be distributed to rightsholders as they emerge to make claims.
Clancy acknowledged that there will be some works that aren’t claimed in the Registry and these will continue as orphan works, but he believes a legislative solution is the appropriate way to deal with orphan works. For now, they can provide access to the works while holding money in the Registry for rightsholders to eventually claim. He thinks this effort will encourage the passage of legislation to deal with orphan works. Further, Google still believes that what they are doing is fair use and they are still scanning material that isn’t covered by the settlement.
Clancy then moved on to address some of the concerns he has heard expressed and to take questions from the audience. Specifically, he clarified that the public access terminals are going to be provided to libraries that decide not to subscribe to Google Book Search on an institutional basis. These public access terminals are not special hardware and they are not dedicated terminals. Google is providing the ability for one Internet-enabled computer in each public library building to have full access to Google Book Search.
The data in the Books Rights Registry is public data, which Clancy believes creates a de facto copyright registry to help people find rightsholders of orphan works. In response to a question, Clancy clarified that a hit in the Registry is just a record of who holds the copyright, and does not denote permission given to Google. Further, if a rightsholder opts out of the settlement, the burden is not on them to provide a full list of their works; Google is liable if they screw up.
Clancy maintained that the settlement is designed to foster competition by making Registry data public and not exclusive to Google Book Search. Rightsholders can allow the Registry, which is being created by authors and publishers, not Google, to negotiate on their behalf with any other provider; alternatively, they can execute an agreement directly with Google or any other vendor without going through the Registry at all. When questioned further on how exactly this agreement would help create more competition, Clancy asserted that the Registry will make it easier to identify rightsholders, and other vendors will engage in their own licensing agreements to provide access to publishers’ content and/or scan materials to create a new product. Google has tried to make it so others can invest in a new project, but this doesn’t mean they will. Other providers will get into it if they decide it is a good business. This was perhaps the least convincing explanation given at the session.
With regard to Federal government works, Clancy told us that, in the past, they have limited access because of a concern that there might be copyrighted material within the work, for example in the case of Congressional hearings. However, the settlement allows Google to treat government works as though they are already in the public domain without the fear that there is copyrighted material embedded within.
Clancy acknowledged that this is potentially a 100 year deal due to the length of copyright. So what happens if Google goes away or decides not to continue offering the product? The settlement agreement addresses this concern by requiring Google to make a copy of the content available to the library partners, thus enabling them to find another provider to make the content available if Google is unable or unwilling to do so. While it is Google’s intent to exceed this level, there is an additional clause in the settlement that says that Google has to make at least 85% of the authorized scanned works available. If they fail to do so, they have to turn all of the data over to another provider.
Another concern voiced is one of censorship. Specifically, will Google display everything they have rights to and, if not, who will decide what is excluded? Clancy said that their collection development protocol was simply to scan everything a library gave them with no additional criteria in place. He argued that Google would not bother to scan everything if they weren’t intending to provide access to the material. Of course, one could argue that it was easier at the time to simply scan everything in one massive operation and deal with any content objections later on a case-by-case basis. At any rate, there is a provision in the agreement that if Google ever excludes material for editorial reasons, they will tell the library partners and the scan will be given to the library partner as well as to the Registry so that another vendor can provide access to it.
Another concern expressed was pricing – how much will Google decide to charge for Google Book Search, especially once/if it becomes a must-have resource for libraries? Clancy tried to reassure us that it is in Google’s best interest for libraries to be able to access the material. First of all the agreement states two objectives: first is to create revenue for the rightsholders which is best achieved by providing access to materials that can be purchased, and second is to ensure broad access to the materials. Additionally, Google sees this as a long-tail product. They want to make sure lots of people can use it; particularly, they want students to rely on the product so that they’ll continue to use it individually after they graduate. Google doesn’t see the institutional subscriptions as the big bottom line. Individuals don’t have to subscribe in order to search or preview the materials, unlike other database vendors that charge for searching. Clancy believes these reasons create a force to provide the product for a reasonable price or libraries will just turn away the institutional subscription.
The issue of privacy was dealt with in a similar fashion. Privacy of user data is not discussed in the settlement agreement at all. Google believes that the best way to deal with this is by engaging with libraries as they go into individual agreements. It will be part of the deal between Google and the library/consumer at the time of the transaction. Google will not be asking for user information from schools and libraries and they won’t know who the user is at an institution even if there is a cookie on the computer in the library. Ultimately, Clancy believes that libraries won’t sign the agreement if they believe there is a problem with the privacy terms.
While Google’s case does benefit from a clarification of some of the finer points of the settlement agreement, I left the session feeling slightly dissatisfied. One of my main criticisms is that so many of the answers given to reassure us that Google was not a monopoly refer to these “other vendors” who will enter into their own agreements with publishers, scan their own books, and make the content available if Google does not. While there are a few big players out there that might compete, I remain skeptical that many other vendors will have the clout to convince publishers to enter into additional agreements in the first place, or have the resources to scan and provide access to the content in the second. And, as usually happens, with the passage of time and the ability to ruminate on the discussion, I have thought of additional questions that I wish I had asked.