European publishers and copyright holders gathered in Brussels on Monday to submit their opinions to a European Commission hearing on the American Google Book Search settlement.

In a nutshell, the situation is this: Google has embarked on a project to digitise hundreds of thousands of out-of-print and out-of-copyright books in the United States.

Some of these works are still technically in copyright, and the Authors Guild and the Association of American Publishers took Google to court. A proposed settlement was reached last year, under which Google will essentially agree to pay royalties to anyone whose book they inadvertently put on line.

The settlement will be ratified in a Manhattan court on October 7 this year, by which time any European reservations will need to be registered.

SO WHAT’S THE PROBLEM?
Several European nations, including France and Germany, have expressed concern that the proposed settlement gives Google a monopoly in content. Since the settlement was the result of a class action against Google, it applies only to Google. Other companies would not be free to digitise books under the same terms.

Both countries are also worried that in-copyright French and German works might be distributed by Google in the United States.

Nicolas Georges, the director for books and libraries at the French Culture Ministry, said: “There are lots of European works in Google’s database. Google can digitise these works without the permission of European authors.”

There’s also the thorny question of who owns digital content. The British Library has held discussions with Google over digitisation of its content, but these broke down over the question of subsequent rights.

Simon Bell, head of partnerships at the British Library, told The Times: “It is an absolute bedrock of anything we do that when we enter into a partnership for digitisation of content that we own the intellectual property on the digital object. So it might be commercialised for a number of years, but ultimately the ownership should then be fully taken back into the British Library so that we can then offer it via our website to the British taxpayer for free. We could not at the time achieve that with Google.”

ANYTHING ELSE?
Lots. Quite apart from the Google settlement, there exists a difference in copyright law between America and Europe. Simply put, in America anything published before 1923 is considered to be out of copyright, and therefore fair game for Google. In Europe, the date is roughly 1870.

It is entirely possible that works conceived, written and under copyright in Europe will only be available to view online in the United States. Under current law, these include such delights as the First World War poets and the early works of Agatha Christie.

Mr Bell said: “Imagine a serious student living in Sweden who needs access to one of only two copies of a German book. A digital copy may be available online, but he or she would have to travel to America to see it.”

WHY DO BOOKS MATTER SO MUCH?
On a broader level, the issue here is not really books, but so-called “orphaned” works, that is to say works that are still technically in copyright but whose ownership is either disputed or unknown.

All over the world, hundreds of classic films are languishing in vaults and cannot be released or digitised because of uncertainties surrounding their ownership, or because of prohibitive demands by copyright holders. Google’s “fair use” policy (a notion that does not exist in European copyright law) might one day make some of these “lost” films available.

The film-maker Kevin Brownlow, who has devoted his career to rescuing silent films such as Abel Gance’s Napoleon, told The Times: “Don’t you think it unjust that studios which destroyed their silent films should still own the rights 80 years later? We tried to make a documentary about a lost film that was found in Czechoslovakia. A major Hollywood company, which had produced it but then incinerated it, demanded $6,000 per minute.”

SO WHAT HAPPENS NEXT?
The European Commission will make its recommendations and the court in Manhattan will either ratify or demand amendments.

In case you are wondering why the Americans should take any notice of the Europeans, it’s because that both are among the 164 countries that are signatories to the Berne Convention for the Protection of Literary and Artistic Works, which is designed to smooth international (dis)agreements such as this one.

One expert close to the case told The Times: “The judge has to see whether the class has been well defined. And that means that anyone who risks being in the class, anyone who has works that may be available in participating libraries in the US has until tomorrow to object or opt out of the deal.”

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