Google has reached a settlement with the group of publishers who filed suit in 2005 over the book digitization project. It is a legal document with many elements, and I cannot hope to make an overall evaluation of the agreement with just the amount that I have browsed (much less with my limited ability to discern the true meaning of legalese). However, there are a couple of sections that raise questions:
7.2 Fully Participating Library Uses… (b) Use of Library Digital Copies… (vii) Personal Scholarly Use and Classroom Use. The Fully Participating Library, if part of a Higher Education Institution, may allow faculty members and research staff of that Higher Education Institution to read, print, download or otherwise use up to five (5) pages of any Book from its LDC [Library Digital Copy] that is not Commercially Available for the following purposes: (1) personal scholarly use (for each Book, no more than once per person per term) and (2) classroom use in such Higher Education Institution that is limited to the instructors and students in the class and for the term in which the class is offered; provided that (a) the Fully Participating Library does not know at the time of such use that it is in material non-compliance with Section 8.2 (Security Standard, Security Implementation Plan and Security Audits) with respect to uses of the LDC authorized pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (b) the Fully Participating Library keeps track of and reports all such uses of Books to the Registry in the course of the audit conducted pursuant to Section 8.2(c) (Audits) or, otherwise, upon reasonable request of the Registry, provided that such requests may be made no more than semi-annually. The Registry may make information from such reports regarding the usage of an individual Book available to the Rightsholder of such Book upon request of the Rightsholder. A Fully Participating Library may not read, print, download or otherwise use a Book or Insert through its LDC pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) if such use is available through the Institutional Subscription and the Institutional Subscription service is offered or is available to the Fully Participating Library (whether for a fee or as a beta product) at the time such Fully Participating Library seeks to make such use.” (page 76)
The agreement defines Commercially Available as “…that the Rightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new through one or more then-customary channels of trade in the United States.” (Section 1.28 on page 4) Does this mean that if a researcher or faculty is able to read (or print) only up to 5 pages of the scanned book each semester for personal scholarly use – and then only if the book is not able to be purchased through “customary channels of trade”?
Am I interpreting this correctly? Is this not a severe restriction of the “Fair Use” clause of copyright? Why would a researcher want to agree to such limitations when the physical item allows for a broader use? I may be misreading this section, however, and hope to have it clarified in the near future.
Another section that gives me pause:
Section 3.8 (b) Effect of Changes in Law. Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b) (Effect of Changes in Law).” (page 37)
So if a legislative body, such as the United States Congress, passes a law that allows for broader use of this type of material (i.e. a change in copyright law), Google can only put the broader use into Google Books if it can demonstrate that another company is already taking business away from them by implementing it; otherwise, Google must keep the higher restrictions in place.
In addition, what happens if “fair use” is broadened? It won’t trigger this section. Does that mean that Google can follow fair use, or that Google cannot? The fair use provision seems to be placed on an equal footing as the “competitively disadvantage” clause. Does Google pass along the broader use understanding, or does it just pass?
For better or worse, this settlement is going to dramatically change how libraries use electronic books. Hopefully the overall agreeement implements a positive experience for all parties involved, and that my concerns (and the concerns of others) are either misread clauses or taking a section out of context.
The element of this agreement that holds great promise is the potential for institutional access to the entire collection of scanned books. Imagine having millions of books available to our patrons via a usable and cost-effective agreement. We are moving towards the future; are we ready for it (and the future for us)?
Further information and links:
