In 2005 Google began working on the digitalisation of books and their availability through the Internet. The company based this action on ‘fair use’, according to which in the USA it is legal the reproduction of intellectual works still not sufficiently disseminated, as in case of works whose author is unknown (orphan works), or out-of-print works.
The Project was finally called Google Books, and gave rise to controversy from the very first day. Thus, in 2009 Google Books had to respond to some lawsuits in the USA accusing the search engine of copyright infringements. Google proposed then to establish a millionaire agreement to compensate the authors and publishers who had been affected by the digitalisation of their own works. However, Google denied having infringed the Intellectual Property Law of USA. The agreement was accepted, and Google was allowed to continue with its initiatives, provided that it would not publish copyrighted works.
Google launched then an advertising campaign where it showed its intention of digitalising works for public use, taking into account that just a limited number of pages of copyrighted works would be available. The initiative would have advertising as main income source, and profits would be distributed among authors, publishers and Google itself.
However, the agreement between Google and the USA collective of writers and publishers upset many, and provoked that a non-profit virtual library (Internet Archive) formed, an opposition group to said agreement, together with publishers, readers, and researchers. They believed that the agreement granted Google a monopoly on orphan works.
Shortly after, thousands of German creators signed the Heidelberg Manifesto against Google Books, since they considered that the company was infringing IP rights, while the “anti-Google” Open Book Alliance was created with the participation of the heavyweights of the Industry, Amazon, Microsoft and Yahoo. Likewise, in 2011 the European Commission steered a proposal on certain authorised uses of orphan works, by which the limitation of private initiatives was intended in favour of the European virtual library, Europeana.
Because the situation was critical, Google restricted its digitalisation scope, being limited to works published in the USA, UK, and Canada. It also had to modify its proposal on orphan works, by establishing that if the author of a book appeared within a period of ten years from its digitalization, they could claim for compensation.
In the mean time, the legislative process started in European institutions remained on course, until it ended with the adoption of the Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. It has authorise making publicly available this kind of works.
As a result of the transposition of the Directive, the Enterprise and Regulatory Reform has been recently passed in the UK, regulating among other issues, the situation of orphan works. This new law permits their use for commercial purposes, as long as a reasonable and diligent effort for finding the author has been done, and upon payment of a market fee.
Nevertheless, the new UK law faces the opposition of photographers, who consider that today’s means for transforming and delete authors’ references from images shared on the Internet, will lead to total impunity of those who exploit such pictures as orphan works.
Controversies aside, there is general consensus in appreciating this new business model created by Google, as a way of rescuing works from oblivion, and as the origin of the new legal instruments which permit their exploitation without infringing IP rights. It is expected that a number of EU Member States will follow the UK, contributing with it to the promotion of culture and the access to it.
Written by Rocio Sirvent