The original agreement appears to have given Google the right to digitise and sell access to works with a certain portion made searchable and the bulk of any funds made from selling the book going to the author. This part of is a good thing in principle since the dominant media platform (and I am a book lover) is the Internet and digitisation means that books can be kept accessible for longer by publishers. Less well selling authors can still have readers getting their books. However, they also wanted to do the same to orphan works. That is the sticking point and rightly so.

Orphan works are works where the rights holder cannot be found as yet and they are an issue in publishing. Without the rights holder being found, the work cannot have anything done with it. As the judgement said the settlement “would grant Google significant rights to exploit entire books, without permission of the copyright owners.” (Source: PDF on Wired’s Threat Level blog).

The underlying principle of digitising books is to be lauded and is a good thing. If a book is out of copyright, then it is equally laudable to make it available online and in various forms.

An issue that comes out of this though is the fact that to succeed and make backlists work for publishers, the orphan works issue must be addressed. I did hear a plan mooted years ago to possibly put any funds into escrow if a holder really cannot be found. It is one method. Equally publishers and creators need to make efforts to find holders (though in some cases this may never be possible).

It is the challenge if publishing is to move on. At the moment, though, I am glad that this deal has not gone through, potentially giving Google a revenue stream from the orphans.

I’m sure that this judgement will be challenged and that there will be new attempts to carry on this work. However the original publishers need to make efforts to make the works available to all on a digital platform, sooner rather than later.

Having read Adrian Johns’ book Piracy, he considers that

From print culture’s beginnings to the rise of the internet, there has been a succession of intellectual property wars for which the English language has just one word: piracy.

There is a temptation to see digitisation and free culture as piracy. It is certainly easier in the short term to do so but that ignores the wider issues of remix and re-use. Print culture was no stranger to piracy. McCrum uses the second book of Don Quixote where the errant knight escapes from the unauthorised translations and re-uses in a print culture which was far more limited than it is now (although one which was broadening through the use of printing).

Google Books has just stepped in and is doing what publishers and libraries should have been doing: making books available for a new medium. Granted this effort will be expensive (I would have thought) but in the long run it makes sharing and reusing knowledge easier and more useful. This aids intellectual thought and allows ideas and research to be more rigorous.

I’m not sure I share McCrum’s equation of free culture with piracy. He writes that

sometimes piracy can be an engine of social and intellectual innovation as much as it has been an enemy of authors’ rights.

We need to come to a better cultural and social understanding of piracy and free culture. I do believe in sharing and reuse but not piracy in terms of stealing. Google Books is in the vanguard of this understanding but believers in open literature should be working to extend this and ensuring that we do not swap one hegemony for another.

In his piece on the Guardian’s Comment is Free David Drummond, Google’s senior vice president for corporate development and chief legal officer, wrote:

If you love books and care about the knowledge they contain, there is a problem that needs to be solved. Somewhere in the region of 175m books exist in the world today. A tiny fraction of those are in print and for sale in bookshops or on the web. ­Another small portion are so old that they are out of copyright and anyone can use them.

This is the core problem and Google are indeed to be praised for doing this and, to a certain extent, publishers and libraries damned. But it is a question of expense and Google have the funds and technical expertise whilst libraries may not.

They are indeed trail blazing and it is easy to write jeremiads against this (I’m aware that this blog post might come across as this). I like the fact that books are being made available and appreciate that there is a cultural clash and legal issues which needs to be dealt with such as orphan works and monetisation for the concerned parties. All parties need to address these issues. I doubt that there will be a mechanism for orphan works which satisfies every one and that it will need to be adapted for each legal jurisdiction but motion towards is better than no motion at all.

Drummond writes:

The truth is that readers around the world who seek the information locked in millions of out-of-print books currently have little choice other than to travel to a small number of libraries in the hope of finding what they are looking for. And if you’re an author, you have no way to make money from your work if it’s out of print.

That paragraph brings up at least two points. There are a small number of academic research libraries like the Bodleian or Cambridge University Library and independent researcher not attached to academic institutions can be locked out of them. There is the marvellous (and this has meant that I’ve had access to several books that othersie I could not get hold of) inter-library loans service that local libraries can offer. When I went to university, one of the first things I was advised to do was to register with the local library. At the time I didn’t use it a huge amount but now… They are lifelines and also help the use case argument for libraries, i.e you use them, you keep them.

How do we get ourselves out of the quagmire that we begin to see ourselves in? At the moment, I don’t know but I’m trying to stumble towards some sort of answer.

Firstly we need to break out the idea that free/remix/reuse culture = piracy. It does not, Mr McCrum. Piracy is perhaps one subset or occasional union but it does represent one view. Of course piracy exists and it always will.

Secondly we need a wider debate as users and providers as to what we want.

Thirdly I think we need to experiment with models. Google provides one way of doing it but not, I think, the only one.

“This effort is just the beginning. As we work with more and more publishers, we’ll move closer towards our goal of making those billions of pages of newsprint from around the world searchable, discoverable, and accessible online.”

In essence this is a laudable step since newspapers are fragile (sometimes damaged) and thus difficult or expensive to digitize.

But wouldn’t it be great if these papers were more than just searchable and discoverable? How about useable with metadata that is hackable so that you could, for instance, link book texts with real life events? It could then be leveraged for educational purposes as well as plain research and to really engage students with reaction at the time in primary sources rather than filtered through secondary sources. The possibilities…

Post: Official Google Blog: Bringing history online, one newspaper at a time