Published works from the US, UK, Australia and Canada only will be included in Google's digital book search project, Google and book industry representatives agreed on Friday (13 November).
Works will only feature in Google Books if they have been registered in the US or come from the UK, Australia or Canada, according to the new settlement, struck in New York last week.
"The changes will mean that 95% of all foreign works will no longer be included in Google's digital book archive," Richard Sarnoff, chairman of the Association of American Publishers, told the FT.
Many European countries had voiced concerns that Google Books will harm Europe's publishing industry (EurActiv 27/05/09), with France and Germany among those fearing that the project does not adequately respect European law on the protection of author’s rights.
Meanwhile, Google's competitors are resentful of the US giant's quasi-monopoly over the nascent digital books market.
In an earlier deal struck with the Authors Guild and the Association of American Publishers in October 2008, Google agreed to pay $125 million to create a Book Rights Registry, where authors and publishers can register works and be compensated by institutional subscriptions or book sales.
Under the terms of that settlement, all works – including those that had never been published in the US – would have been eligible for inclusion in Google's project unless the rights holders were to explicitly opt out of the scheme.
But the US Justice Department decided to investigate that deal amid concerns that it contravened copyright and antitrust law, despite recognising the potential of Google Books "to breathe life into millions of works that are now effectively off limits to the public".
Under Friday's agreement, Google Books will only include works registered in countries which have "contributed the largest number of English-language works to American libraries," made possible by similarities in their legal systems and the structure of their publishing industries.
Publishers in the UK, Canada and Australia will be represented on the board overseeing the rights registry alongside their US counterparts.
Google's opponents - represented by the Open Book Alliance, which includes Microsoft and Amazon - were quick to slam the latest developments as a "sleight of hand".
"Fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners. None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest," said Open Book Alliance co-chair Peter Brantley.
'Orphan works' deal
Controversy has been rife over the issue of so-called 'orphan works': books which are out-of-print or whose author cannot be traced.
Friday's deal stipulates that any money made from such works must be held for ten years in case details of the copyright holder emerge, after which time any unclaimed money will be shared among charities in the US, Canada, Australia and the UK.
A proportion of the revenue generated from unclaimed works must also be used by Google to search for rights holders.
The settlement allows Google to use its registry to sell individual online subscriptions, digital downloads and print-on-demand services.
Reacting to the settlement, the Federation of European Publishers (FEP), which represents 26 national publishers, "acknowledged that the parties considered the concerns of European publishers and made some steps," but announced its intention "to analyse more thoroughly the new settlement before giving a final comment".
"The Parties listened to some of the objections we raised in excluding non-English books, although we need to analyse better the implications of this exclusion and the practical effects of the adopted definition, which includes also non-English books under certain conditions," read a FEP statement.
"Also the definition of commercial availability has been significantly improved and some provisions about orphan works, in particular the plans to locate actual rights holders, seem to be a signal that the settlement is moving to the concept of prior authorisation before any act of reproduction (scanning) and/or making available, which is the key principle enshrined in the Berne Convention, pursued by European publishers, and agreed with other European stakeholders," FEP concluded.
FEP supports Europeana as a single access point for Europe's cultural content, alongside initiatives such as Germany's 'Libreka!' and France's 'Gallica2'.
Reacting to the weekend's settlement, Peter Brantley, co-chair of the Open Book Alliance, which represents among others Amazon and Microsoft, said that "by performing surgical nip and tuck, Google, the Association of American Publishers and the Authors' Guild are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution".
Brantley also accused them of trying to "usurp Congress’s role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process".
"The digitisation of books has the potential to unlock huge volumes of our shared cultural knowledge, and the Open Book Alliance supports efforts to make books searchable, readable, and downloadable. But there is a right way and a wrong way to accomplish this goal. The right path embraces openness, competition, and the public good," the Open Book Alliance said in a statement.
Reacting to the settlement, Paul Aitken, executive director of the Authors' Guild, is quoted by the FT as saying "there are substantial changes but we’ve protected the core," adding: "There's a basic deal that’s quite good for everyone."
Dan Clancy, head of book digitisation at Google, said certain fundamental parts of the original settlement could not be changed. Only an amendment to US law would make it possible for other Internet companies to offer orphan works online in the same way that Google will be able to do legally under the settlement, Clancy is quoted by the FT as saying.
"Google's newest settlement proposal, like the earlier version, is a disaster. It would give Google a monopoly over millions of the world's books. It would also further entrench Google's dominance in search, including in Europe, and stifle innovation and harm consumers in a vitally important sector of the Internet ecosystem. It should be - and for the good of the Internet must be - rejected," according to I-COMP, the Initiative for a Competitive Online Market Place.
- By 2010: Commission aims to make 10 million digitised works available on Europeana.