In the 1st issue for 2011 of the journal Scholarly and Research Communication comes a masterful exploration of the cultural and legal issues surrounding the Google book settlement by Jenna Newman. At 75 pages, this monograph-length essay is probably the most comprehensive and certainly the most current exploration of the issues underlying this giant experiment in digital publishing.
It’s not really possible to sum up the entire essay, so I’ll just cut to the chase and quote from her conclusion, which firstly establishes in extraordinary detail just how good the deal is for Google:
If the settlement is approved, Google can congratulate itself on a particularly excellent deal. It avoids years of uncertainty, not to mention ongoing legal fees, in litigation. It avoids prohibitive transaction costs by not having to clear rights individually for the works it has scanned already and all the works covered by the settlement and yet unscanned. It will receive a blanket licence to use a broad swath of copyrighted works, and it will enjoy an exclusive position, both as a market leader and with legal peace of mind, in the realm of digital rights: its private licence goes much further than current copyright legislation, particularly with respect to orphan works, for which rights are currently unobtainable in any market. Low transaction costs and legal certainty are key requirements for any mass digitization or digital archiving project (McCausland, 2009). The settlement offers both, to Google and Google alone. It will be years ahead of any potential competitors digitizing print works and may easily end up with an effective monopoly and a leading stake in the emerging markets for digital books. And all this costs Google only U.S.$125 million—a mere 0.53% of its gross revenue, or 1.92% of its net income, for 2009 alone (Google Inc., 2010b)
Newman suggests that th deal is far more equivocal for publishers and authors, but that given the other options on the table (including the risk of a music-industry style failure to establish a viable digital publishing platform until after piracy has eroded much of the value of the market), it may represent the “best deal available.”
But the real implications are for copyright law and communications policy:
The settlement may serve publishers’ and authors’ individual or immediate interests even as it erodes their collective and long-term ones. The public, too, has a significant vested interest in the subjects of the settlement—the books themselves, repositories to centuries of knowledge and creativity—as well as the legal and cultural environment the settlement endorses. A detailed account of the settlement’s economic and cultural costs and benefits is instructive, but more importantly the settlement highlights the structural and technological deficiencies of existing copyright law. Long copyright terms and the presumption of total rights protection have created a copyright regime that privileges the potential for commercial exploitation regardless of whether that exploitation is feasible or even desired by the creators themselves. This regime is also particularly ill equipped to recognize digital possibilities. Whatever happens to this settlement, such tensions continue to strain copyright’s rules.
A number of conditions on approval could address criticisms of the settlement, but perhaps the best way to ensure Google, publishers, and authors are all treated fairly is to pursue copyright reform, not private contracts, to address the legislative problems that the settlement tries to engage. Legislative changes with respect to intellectual property rights have been slow to reflect everyday technological realities. The existence of the settlement, and much of its reception, demonstrates that private interests and public appetites are eager to move beyond the limits of the current regulations. Copyright reform will be fraught with challenges of its own, but the existing legal framework—in Canada as in the U.S.—is increasingly inadequate for accommodating common and emerging practices and capabilities: copyright law has swung out of balance. The settlement may serve as an early test bed for certain possibilities, including digital distribution and access, and the imposition of limited formalities on rights-holders. However, as a private contract, it is an insufficient guide for legislative development. The trouble with copyright does not affect Google alone. The public interest demands more broadly applicable solutions, and these will be achieved—eventually, and possibly with great difficulty—through copyright legislation. We may get copyright reform wrong, as arguably we have done in the past, but that fear should be allayed if we also recall that we have the power to revise our legislative interventions until we get them right.