Transatlantic Answers to the Challenge of Orphan Books: Google’s Books Settlement and Its European Counterpart

Abstract

A great leap in creating a digital library for the internet world is Google’s Books Search initiative.

In a pragmatic approach of' ‘do first and then ask' Google started digitizing library collections from around the word.

More recently Google and its partners have settled an agreement that put an end to class actions introduced by copyrights holders. One of the most interesting parts in the settlement relates to orphan books, books whose copyright status is uncertain.

According to the agreement Google would be able, under certain conditions, to digitize and distribute these books electronically. It might have been one of most important breakthroughs in copyright, based on the 'opt out' option for copyright owners. However the agreement was rejected in some important parts (the ‘opt-out’ clause included) by a US Federal judge.

The fact that Google began scanning 'out-of-print' books created an awareness of importance of the issue in Europe. There were no class actions available in European countries on copyright issues. The only remedy might have been a top-down approach based on legislation – as extension of collective licenses used in Denmark, Finland, Sweden, Norway or Iceland.

Most recently the French Senate began to discuss a bill aimed to build a framework for digital utilization with an 'opt-out' mechanism similar to the one envisioned in Google’s agreement.

The initial steps seemed to favor the US. That created in Europe an incentive to establish similar solutions for orphan books through statute law. The recent rejection of Google's agreement and its highly uncertain future might restart, once again, a transatlantic competition.

Keywords: US Copyright Law, French Copyright law, European Union Law, digital libraries, orphan works, opt out clause, class action in US

JEL Classification: K23, K42