European Commission holds public hearing on the “Google Books” US settlement

On 7 September 2009, the European Commission held an “information hearing” to establish the effect on the EU market of Google’s settlement with a US class of authors and publishers, which disputed steps taken by the internet company to digitize books. “Provisional conclusions” are expected sometime in October 2009.

The hearing followed concerns, raised by stakeholders and some EU governments, that Google has apparently been digitizing content without the consent of authors, contrary to EU law, and that European rights-holders may be being marginalized in the class action settlement in the US.

The aim of the hearing was to gather views on Google’s ongoing US settlement and give Google a chance to respond to critics and comments concerning the settlement and the Google Books service more broadly. The hearing focused particularly on the scope of the settlement deal, how many European works are covered and the role of the central registry which oversees licensing. The European Commission was also interested in clarifying the notion of “commercially available”, which is a key factor to determine how, or whether, Google can display the copied text.

Google’s rivals have suggested that the European Commission could use antitrust law to address suggestions that Google could be abusing its dominant position online to engage in price-fixing, limit access to the online book market and drive booksellers out of business.  Yet, Google asserted that it is a fairly straightforward process for rivals to use the registry that is set up as part of the US settlement to launch rival services.
The other route the Commission may pursue would be to make changes to copyright law. Vivien Reding, Commissioner for Information Society and Media, and Charlie McCreevy, Commissioner for the Internal Market and Services, highlighted the need to adapt Europe’s fragmented copyright legislation to the digital age, in particular with regard to orphan and out-of-print works.
However, the process of adapting copyright law will be fraught with the usual trappings of legislative reform, and it will take political determination and extensive negotiation to find a solution for the management for copyright of books that will be acceptable to the majority of stakeholders. If the Commission should decide to go this direction it may also be likely that any proposal might be bundled with an overhaul of the rules governing other types of creative works such as music, adding to the complexity. [Gabriele Accardo]