Opinion It is wrong to copy

Much of the controversy centred around the approach outlined in the settlement. Google had negotiated an agreement with the Authors Guild of America that allowed it the right to scan and digitise books unless the author of the book opted out of the settlement. This meant that Google had a right to digitise unless the author objected. This “opt-out” approach to copyright is not only unprecedented,but it also strikes at the very root of copyright philosophy — that the author is the “first owner” of the copyright in a book and that s/he has the exclusive right to grant a licence to its use by anyone else. If the settlement had been affirmed,Google would have obtained an automatic right to all literary works unless the author objected to it. This would not only have taken the rights away from the author,but it would have also placed him in the unique position of having to request Google to stop doing something which by law it was not permitted to do in the first place.

The single largest class of copyright works that would have been affected was the category known as “orphan works”,a sub-class of books whose authors are unknown even though the works themselves remain in copyright. Under the terms of the settlement Google would have had an almost unfettered right to scan these books as the authors were all unknown and unable to register their protest. The judge took objection to this approach. He held that a matter of such significance could not be determined by private parties through a settlement that,from all appearances,did not represent the interests of all stakeholders. If there was a need to do something to allow the general public greater access to orphan works,then it was up to the legislature to decide what was to be done.

The controversy around the Google library project is strangely reminiscent of another tumultuous time in the history of the internet — when a young college student decided to change the way in which music was distributed by creating a technology that allowed students to make digital recordings of their favourite music and exchange it over the internet. That project came to a very quick and public end as Napster was shut down and declared fundamentally violative of copyright.

Google appears to be doing very much the same thing — copying books without permission and distributing them over the internet. The difference between Napster and Google is that where Napster had to capitulate and die,Google has managed to wrestle,from an indeterminate population of authors,a negotiated settlement with which it has managed to garb its project in the mantle of propriety. This settlement would have allowed Google to assume complete control over all digital books,regardless of whether or not their authors had assented.

Yet,one cannot but help wonder whether this is the real future of books. Napster demonstrated to the world that the future of music was digital. Today more music is sold online than was ever sold on recorded media.

It seems inevitable that books are headed down that same path. If Google failed to win the day with its settlement agreement,it appears quite likely that it will take the battle to the US Congress,arguing for a more liberal copyright regime that will allow digital publishers greater freedom to publish out-of-print books for the greater good. Should they win there,copyright law as we know it will probably change completely — an outcome I am not sure is entirely undesirable.

The writer is a Bangalore-based lawyer express@expressindia.com