PHILIP

In the fall of 2008, Google entered into a settlement agreement with a group of US authors and publishers regarding Google's digitization of books and other writings on Google Books. The settlement agreement may affect Danish rightsholders, and Google Books is yet another example of a medium which copyright legislation must adapt to.
Background:

The background of the settlement agreement was a lawsuit brought by US authors and publishers against Google, claiming that Google violated their copyrights by digitizing their books and making parts of them available through Google Book Search.

Google Books is a web search service in which Google has digitized books from American libraries, among others, and stored them in a digital database. According to Google there are over 7 million digitized works in 40 different languages in the Google database.

The parties to the settlement agreement agreed that Google may digitize copyrighted literature and make it available online subject to a percentage payment to the rightsholders. Books published after 5 January 2009 are not included in the settlement.

The settlement contains deadlines for rightsholders to opt out and file objections to the settlement agreement. The deadline to opt out or file objections to the settlement expired at the beginning of September. Claims from rightsholders for cash payment for books Google has scanned must be filed on or before 5 January 2010.

Copyright considerations:

The digital medium Google Books and the settlement agreement give rise to several copyright considerations, including the extent of the copyright monopoly. The scanning of copyrighted works and upload to the Internet are examples of problems in relation to the copyright monopoly to exercise control of a work by producing copies and by making it available to the public. In this connection it could be considered whether it should be allowed to digitize and make literary works available.

At the beginning of this month the European Commission sponsored a hearing on the Google Books settlement. The European Commission stressed the need to adapt Europe's copyright legislation to the digital age and to look into the prospects of a joint European agreement with Google.

How does the settlement affect Danish rightsholders?

From a Danish perspective the settlement agreement is interesting inter alia in regards to the possibilities of Danish rightsholders of securing their Internet rights in the USA. The settlement is not limited to US rightsholders. It may also affect rightsholders outside the USA who are protected by US copyright law and whose works have been stored in the Google database. Such rightsholders may claim remuneration, and as Denmark is a signatory to the Berne Convention, Danish rightsholders are also covered by the settlement.

Settlement to be approved by US court:

The settlement agreement has not been finally approved. On 7 October 2009, a United States District Court will hold a Fairness Hearing to consider whether the settlement is fair, adequate and reasonable. Hopefully, it will subsequently be possible to draw conclusions from the settlement agreement.

If you have any questions or wish to elaborate on the subject, please contact:

Peer B. Petersen, Partner
E-mail: pbp@philip.dk
Mobil: + 45 40 74 74 50

Lisa Webster, Advokat (Attorney-at-law)
E-mail: lwe@philip.dk
Mobil: + 45 51 16 99 29