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EU calls hearing over Google 'orphan' treatment

US book scan plan trips rest of world

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As the US Department of Justice continues its investigation into Google's $125m book-scanning settlement with American authors and publishers, the EU has cranked up its own review of the controversial pact.

On September 7, Bloomberg reports, the European Commission will hold a hearing where interested parties can comment on the settlement, a tentative agreement that would give Google a kind of legal monopoly in the digital book market. Participants were invited to the EU hearing three weeks ago.

The EU first said it would examine the Google Books settlement in May, after a complaint from Germany was backed by Britain and France. But at this point, the commission says it's merely conducting a fact-finding mission, not a formal investigation.

With its invitation to the September hearing, the commission said it is "seeking precise details on the exact scope of the settlement" and "how many European works or publications will potentially be affected."

In October, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over its Google Book Search project, which seeks to digitize works inside big-name libraries across the globe. The settlement creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a cut of Google's revenues.

But it also gives the web giant an eternal license to scan and sell and post ads against "orphan works," titles whose rights are controlled by authors and publishers who can't be identified or located. And that license is something anyone else would have.

Earlier this month, the US DoJ confirmed its antitrust probe of the pact when deputy attorney general William F. Cavanaugh sent a letter to the federal judge overseeing the proposed settlement. "The United States has reviewed public comments expressing concern that aspects of the settlement agreement may violate the Sherman Act," Cavanaugh wrote.

"At this preliminary stage, the United States has reached no conclusions as to the merit of those concerns or more broadly what impact this settlement may have on competition. However, we have determined that the issues raised by the proposed settlement warrant further inquiry."

Google did not immediately respond to request for comment. But when Bloomberg asked about the EU hearing, the company said: "This is a really important issue to discuss - how we can use the Internet to bring back to life millions of books in Europe that will otherwise be lost... This is at the heart of what we have done in the US in agreement with authors and publishers."

Naturally, Google doesn't see the problem with its settlement, which still requires court approval. In May, Google senior vice president and chief legal officer David Drummond said that "anyone who wanted to go scan" books could "come up with a similar outcome," meaning anyone else could reach their own settlement. But that would involve scanning millions of library books without regard for copyright and getting sued for multi-millions of dollars.

Yes, Google's $125m settlement is the result of a lawsuit from American authors and publishers, but it would no doubt have an enormous effect on foreign authors as well. Mary Minow of the LibraryLaw Blog estimates that around 50 per cent of the books already scanned by Google are not in English, arguing that at least three million works covered by the settlement are foreign works. And many of these, she contends, will be orphans.

"The largest group of non-active rights holders are likely to be foreign authors," she writes. "In spite of Google's efforts to publicize the settlement abroad, I suspect that most foreign rights owners of out-of-print books will fail to register with the Registry.

"For one, they may not know that their book is still protected by copyright in the US. In addition, they may assume that international network of reproduction rights organizations would manage their royalties and not understand the need to register separately."

For instance, under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), foreign copyright holders needn't register with the US in order to maintain their rights stateside. But if Google's settlement goes through, authors couldn't protect themselves from Google abuse without explicitly registering with Google.

"If I'm a French author, TRIPS says I don't have to register claim in the US to be afforded copyright protection," says Peter Brantley of the Internet Archive, which has launched its own book scanning operation and has loudly objected to Google's pact.

"There is concern that the Google settlement's claiming mechanism runs counter to TRIPs... Clearly, there are a set of issues that impact international authors." ®

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