Ministry of Innovation / Business of Technology

Publisher: Google book settlement flawed, but essential

The head of the Oxford University Press says that while the Google book …

The settlement between Google and book copyright holders has been examined by everyone from librarians to the US Department of Justice. Most of the issues identified by outside parties have focused on two issues: the market power it cedes to Google, and the ability of the public to access the knowledge that is contained in out-of-print works. The latest organization to weigh on the settlement is Oxford University Press, which occupies an interesting position, as it's both a publisher of copyrighted works and has a mission of disseminating knowledge. As such, the position taken by the head of its US division is quite nuanced: the deal is flawed, but may be essential for maintaining the public's access to knowledge.

Tim Barton, the head of OUP USA, discussed his views on the settlement in an essay that appeared at The Chronicle of Higher Education. He starts it off with a telling anecdote: a professor at Columbia, when grading an essay assignment, found that most of the class cited a work that had been published in 1900, which had largely been forgotten since. Why so many citations? It was in Google Book Search. More recent and relevant work isn't.

Given that his company's mission includes the dissemination of knowledge within the academic world and beyond, it's not surprising that Barton views this as indicative of a serious problem. If a relevant academic publication is effectively invisible to the OUP's target audience, then the Press isn't doing its job. And Barton has a very simple definition of invisible, as he writes "what once seemed at least debatable has now become irrefutable: if it's not online, it's invisible."

Barton identifies what's roughly a 70-year gap in the available literature. Everything before 1923 is in the public domain, and copyrighted works from the last 10 years or so have typically been available in digital form from the start. Everything in between, however, is likely to fit his definition of invisible. OUP has been working on closing this gap by engaging in its own digitization program, but it has turned out to be expensive and logistically challenging; smaller publishers or those with fewer resources are unlikely to be able to pursue this on their own.

As such, the fact that Google has done the work for them is a very significant development, but only provided that the settlement allows the academic community access to these digitized works. Despite its imperfections, Barton thinks it will. "It [the settlement] provides a means whereby those lost books of the last century can be brought back to life and made searchable, discoverable, and citable," he argues. "That aim aligns seamlessly with the aims of a university press."

Like other publishers, Barton expresses concern about the market power that Google will hold under the terms of the settlement, specifically objecting to aspects that will ensure that nobody can negotiate access to the scanned material on terms better than Google's. The fact that the company paid the cost of doing the scanning does entitle it to a reward, but Barton figures its huge first-mover advantage should be sufficient.

The settlement also doesn't ensure that everyone will have access to scholarly works, as individual publishers can still choose to limit access to their collections. And, despite years of pressure, Congress hasn't done anything to clarify how copyright law should apply to orphaned works. So, at its best, the settlement is a partial solution.

The alternatives, in Barton's view, are even worse, though. Its failure would result in years of confusing and potentially contradictory lawsuit results. He suggests that if either side came out ahead, the end result would be problems for the consumers of the digitized works: limited access if the publishers win, or damage to publishers if Google comes out ahead.

In the end, however, Barton suggests that the settlement may be essential for moving book publishing off the disastrous path followed by other content industries. "In the same way that Apple's iTunes created an alternative to the copyright theft of peer-to-peer software," he argues, "the agreement establishes a framework in which intellectual-property rights will be acknowledged and respected, rather than ignored.

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