Google Scanning Deal Details Provoke New Controversy
By Andrew Albanese -- Publishers Weekly, 6/15/2007 9:05:00 AM
A copy of Google's most recent library book-scanning deal with the 12 libraries of the Committee on Institutional Cooperation hit the Web this week and generated controversy among librarians, although the changes could appease publishers. The most intriguing aspect of the deal is that rather than returning a digital copy of books to libraries, even those that are in copyright, Google will put in-copyright digitized titles in escrow on a secure server. The storage of escrow files will be maintained by Google at Google's expense. What that means for CIC libraries is that they may not see digital copies of in-copyright books scanned by Google for a very long time, if ever.
Section 4.11 of the agreement states that Google will hold the "University Copy" of these works "in escrow," releasing them to the contributing libraries if the "In-Copyright Work becomes public domain"; if the "library party has obtained permission through contractual agreements with copyright holders that includes the right to make a copy of the In-Copyright Work and to provide it to the CIC or Source CIC University"; if "well established case law exists that InCopyright Works can be copied and held" by the libraries without infringing on the rights of a copyright holder; if Google is in "material breach of its obligations" under other sections of the agreement; or if the CIC and Google "agree in writing" that the release of particular in-copyright works is "legally supported and appropriate." The exceptions, however, are pre-existing terms in the agreements two CIC libraries, Michigan and Wisconsin, signed with Google that call for the company to provide copies of scanned works. A full look at the contract is available at http://www.cic.uiuc.edu/.
On his personal blog, Peter Brantley, Digital Library Federation executive director, suggested he wasn't about to hold his breath waiting for Google's escrowed copies to be released. "Pretty much, unless Google ceases business operations, or there is a legal ruling or agreement with publishers," he wrote, "in-copyright material... will be held in escrow until such time as it becomes public domain." Further, should an agreement with publishers involved in litigation resolve the issue of Google's scanning of in-copyright works, it is highly probable that any agreement would forbid the transfer of these copies to libraries. "I find it hard (not impossible, but hard) to imagine why publishers, as a community, would permit the CIC to obtain such copies," Brantley noted. "The 'library copy' is something that has deeply irritated them since the Google Book Search program started."
The deal also includes a clause that has libraries, the majority of which in the CIC are public institutions, indemnify Google, a multibillion private company, should disagreements arise over copyright status. That means the professional opinions of scholars and librarians as to the copyright status of certain works scanned by Google could be trumped by more cautious university lawyers.
The terms of the CIC deal reflect a growing change in Google's attitude toward the publishing industry. Mark Sandler, CIC director and former collection development officer at the University of Michigan University Library, pointed out that the CIC deal differs not only from Google's deal with Michigan, but from its other library partnerships as well. "I think there's just been a lot of discussion over the last two years," he said. Sandler said he didn't disagree with some of observations by fellow librarians concerning the deal, but said that, without the funds, time and staff to undertake their own major scanning efforts, CIC libraries are satisfied to have Google provide some measure of access.
