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IP Osgoode is proud to present our winter speaker series. In the last five years book publishing has probably gone through more change and upheaval than the previous twenty years combined. Douglas Pepper, a veteran of the publishing industry, will talk about those changes and the effects they鈥檝e had on all elements of the book world, and perhaps make a few predictions. Although, according to Mr. Pepper, trying to predict anything in the book industry these days, even on a quarterly basis, may be a fool鈥檚 game.

Details:

"Books Are Dead. Long Live Books!" - February 13, 12:30pm-2:00pm, Room 1014, Osgoode Hall Law School, 91亚色, 4700 Keele St, Toronto, Canada. Please RSVP to , Event Code: Pepper, by Tuesday February 12. Lunch will be served. All are welcome. Click for details.

Douglas Pepper: Douglas Pepper has been in the publishing industry for 28 years, first as the first editor at Random House of Canada鈥檚 nascent publishing program, then in New 91亚色 as a Vice President and Senior Editor at Crown, a division of Random House, Inc. He moved back to Canada to become the President and Publisher of McClelland & Stewart in 2004, and most recently is founding publisher of his own non-fiction imprint, Signal/McClelland & Stewart, a division of Random House of Canada. He is a graduate of the University of Toronto and The Radcliffe Publishing Procedures program at Harvard, and grew up in Toronto. The authors he has published include Carol Shields, Jimmy Breslin, Michael Cunningham, Julian Barnes, Peter Carey, Christopher Buckley, Samantha Nutt, Jonathan Ames, Conrad Black, Ann Coulter, Christopher Hitchens, Alain de Botton, Simon Shama, Anne Applebaum, and many others. He lives in Toronto with his wife and two children.

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A copyright infringement by multiple authors鈥� groups 鈥� including two Canadian ones 鈥� against Google and several universities for their book scanning and digital distribution has been聽.

Federal Justice Hon. Harold Baer Jr. drew from the of , as well as the (ADA) in his decision. The defendants convincingly argued that Hathitrust appropriately disseminates materials for educational and social good purposes, in particular by greatly increasing reading material accessibility for people living with visual impairments.

The and the were the two Canadian plaintiff organizations, losing alongside the Authors Guild of America and others.

The backstory
The HathiTrust Digital Library is a database of reading material, much of which is provided the . The purpose of Google鈥檚 Library Project is, by Silicon Public writer Lisa Jackson, 鈥渢o scan and publish all the books in the world.鈥� HathiTrust already contains 10M books, 73 percent of which are copyrighted material.

This victory for Google follows on the heels of a recent copyright concession. In this , Google and the (AAP) announced a settlement in their marathon copyright dispute, which started in 2005. The suit was filed by the APP on behalf of members McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon& Schuster. The APP gave Google the right to scan and sell e-books on the online store Google Play for an undisclosed amount of money.

The judgment
At issue was scanning for the purpose of indexing. The judge found that scanning is 鈥渢ransformative鈥�, which is a fair use justification to sidestep normal copyright regulation. Historically for commentary, criticism or parody, but the definition is expanding in the digital day and age.

The judge, however, wrote that the 鈥渕ost important鈥� transformative purpose of the scans was the 鈥渦nprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers鈥� as argued by the defendants and the , which provided an opposition brief in the case. Judge Baer,

鈥淭he totality of the fair-use factors suggest that copyright law鈥檚 鈥済oal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.鈥� Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants鈥� fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement. In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL.鈥�

The orphans
Orphaned works remain in question. With a little over a quarter of works in HathiTrust having no copyright or known copyright, there is confusion about how best to proceed. Google proposed that it scan the orphaned works, place up to 20 percent of the text in search results, sell the works, and then set aside the collected sales revenue until the author comes forward. The New 91亚色 Federal Court that proposal last year. U.S. District Judge Denny Chin felt that the plan as outlined in the Amended Settlement Agreement (ASA) not only聽聽took too many liberties with the works, but also posed anti-trust concerns.

The ASA would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission鈥oogle's ability to deny competitors the ability to search orphan books would further entrench Google's market power in the online search market.

Judge Baer did not rule on the orphan works question because the suit argued against the legality of the 鈥� a University of Michigan Library-led project to identify books whose copyright holders cannot be identified or contacted 鈥� which has not formally launched its efforts. The Orphan Works Project states on their website in an update from this past July that 鈥淭here are no plans to provide access to these works.鈥�

The new status quo
To recap the current parameters, there are some clear checks and balances to fair use in practice. One might say that neither side of this copyright debate is happy. And perhaps that鈥檚 how it should be. To wit:

• When people search the HathiTrust database to search a word in a copyrighted book, only the page numbers and number of mentions in the book are provided. The full text of the book is not available for fully abled individuals who do not have rights holder鈥檚 permissions.
• Full text will be made available for people who have rights holder鈥檚 permissions as well as for people with certified print disabilities. In the case of those with print disabilities, the work will be provided in an auditory version.

The response
The general public response has been largely positive, though there is a sample bias because so many internet commentators tend to the pro-digital-proliferation side of these types of debates. While many members of the copyright, legal or library community wrote supporting the decision; others, such as blogger Matthew Sag, have overstated the victory.

鈥淭he decision is a landmark win for the HathiTrust, the University defendants, people with print-disabilities, Google, the Digital Humanities and, I would argue, for humanity in general,鈥� said Sag.

Authors are not, however, without their advocates. The concern that too much fair use hurts copyright holders who rely on copyright purchase for income was best summed up by Publisher鈥檚 Weekly reader George Payerle, who , 鈥淚t鈥檚 clear that authors are expected to subsist on electrons.鈥�

The big question
One major issue that remains under-addressed is data access. Google through HathiTrust is collecting large amounts of data about the who, what, where and when of book searching.

Word on the street is that Amazon has been less than generous about sharing its intel with publishers, so it鈥檚 possible that a part of the Google-AAP settlement includes terms of data sharing.

Certainly author groups should benefit from this same access to data, even as piecemeal compensation for their lack of legal copyright at the hands of fair use.

Denise Brunsdon is a JD/MBA candidate at Western University.

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Since the introduction of Google Books in 2004 (previously known as Google Book Search and Google Print), Google has seen the development of its online index and search tool聽marred by numerous lawsuits at home and abroad alleging copyright infringement. Publishers, authors, image creators and the like took issue with their unauthorized digitization of copyrighted works. In the United States, Google鈥檚 main contention throughout this legal saga has been that the snippets of pages that were digitized from聽books were covered under fair use laws.

Although it seemed as if an agreement between U.S. publishers and Google was close to approval from both sides in 2009, were critical of the wide-reaching and all-too-favourable terms for Google. Even the Department of Justice at a fairness hearing in 2010, citing the fact that the terms may violate anti-trust laws in the U.S. and also required the court to exercise powers that it did not have to instigate copyright reform beyond the scope of the case at hand. Not surprisingly, New 91亚色 Southern District Judge Denny Chin because it 鈥済oes too far鈥� in giving Google the upper hand. Interestingly, Judge Chin noted that many of the objections cited could be pacified if the terms reflected an 鈥渙pt-in鈥� framework rather than the 鈥渙pt-out鈥� process proposed. and other content creators were especially critical of the opt-out model, wherein Google had sweeping rights to use any orphan works indefinitely until the rights-holder comes forward and objects to such unauthorized use.

In contrast, the settlement that has come to fruition in France reflects such an opt-in framework, wherein Google must first obtain the permissions of publishing houses and their respective authors prior to digitizing the French works. To date, Google has already signed digitization agreements with two major French publishers, and . Following this settlement, it is likely that Google will set its sights on convincing more French publishers and content creators to join. However, it is that publishing houses that ally with Google in this deal must agree that they will not sell their books through any other competing e-content distributor, which could represent a major聽blow for Amazon, who recently introduced its French-language Kindle reader and accompanying online bookstore in France. What will聽likely result in France is a race between Google, Amazon, Apple and聽other e-book retailers聽to sign any and all publishers as quickly as possible.

The agreement in France may nonetheless have little effect on the situation in the States. On May 31, Judge Chin rejecting Google鈥檚 motion to dismiss the claims brought forward while also granting the three plaintiffs involved class certification status. Google has since to appeal the decision with the Second Circuit, with summary judgments to be filed by July 27 and trial scheduled to begin on October 9. It seems likely that the case will proceed to trial for a determination of whether Google has infringed copyrighted works and owe statutory damages. The debate will no doubt be centered upon what 鈥渇air use鈥� in this context can mean and whether Google鈥檚 use of the copyrighted works can fall under the fair use defense.

Publishers Weekly has that remarks made by the Authors Guild鈥檚 Executive Director seem to suggest another invitation for Google to resume negotiations for settlement. For the publishing industry as a whole, a key point of contention in these negotiations that must be resolved is a determination of how to ensure that authors of all published works, including those of an academic nature, can be taken into account through this arrangement. UC Berkeley Law鈥檚 suggests that scholars like herself are quite happy to provide their academic works in an open access forum, and their goals differ quite a bit from the more profit-oriented Authors Guild. As Samuelson contends, a class action lawsuit such as this may not be the most appropriate mechanism聽with which to spur copyright reform to develop legal open access information schemes that cater to all. The results of this case, whether determined in or out of court, may indeed be a step in the right direction for the larger discussion of how best to balance protection of creators鈥� rights with public access to information and scholarship across all genres.

Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.

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The Australian government by the Productivity Commission to repeal the Copyright Act's parallel import restrictions. Parallel import restrictions, which exist in most English-speaking countries including Canada, prevent the importation of copyrighted works without the consent of the local rightsholder. Australia's Copyright Act currently forbids parallel importation of books if an Australian publisher releases the book within 30 days of its first release elsewhere.

that the parallel import restrictions allowed Australian publishers to set prices much higher than the prices set in other markets: the average price of an Australian book was found to be 35% higher than the equivalent American edition. They concluded that permitting bookstores to stock copies of books imported from outside Australia would encourage lower prices.

The Australian government, however, did not agree with the Commission. The current regime allows exceptions for individuals buying books from overseas retailers. In other words, an Australian citizen can already order a book online at the US price and, with at least one popular store, free shipping. Further, they noted that electronic books are increasing in popularity and compete with locally printed books. With already available competition and the likelihood of that competition increasing, the government decided that whatever benefits may come from removing the restrictions would be outweighed by the effect on the Australian publishing industry. They also rejected suggestions that a price cap system (as is in place in Canada for some books) be introduced or that the length of the local monopoly be shortened.

I largely agree with the Australian government on this issue. In particular, it seems unwise to remove import restrictions while other countries maintain them. First, because it expands the markets of foreign publishers without expanding the market for Australian publishers. Second, because it would undermine the ability of authors to negotiate Australian rights: exclusive rights would become non-exclusive. Further, the actual price differences found in the report have been criticized for comparing Australian recommended retail prices to reduced prices at American online retailers---prices which are available to Australian customers as well. If the only goal of removing the restrictions is encouraging Australian publishers to monitor foreign prices more carefully, then competition from online retailers and e-books may be enough. It's far too early to tell.

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