Google seeks to defuse row over copyright

In every area where Google has pushed, it has been over the line
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The Independent Online

Google is setting out to mollify critics in the media industry who say the internet pioneer infringes their copyright, with promises to work with newspapers on a new licensing system, to work with publishers to boost book sales, and to work with film-makers to help them profit from clips uploaded to YouTube.

Its conciliatory stance comes as the media industry begins to fight back against the company, claiming that Google is building a rival media empire under the guise of "organising the world's information". Their fears have only been exacerbated by the news that Google is paying $1.65bn (£890m) to buy YouTube, one of the fastest-growing entertainment sites on the web where, every day, visitors watch more than 100 million video clips uploaded from web cams or copied from television and DVDs.

Already Google is facing serious legal assaults on two of its major projects: Google News, which aggregates the headlines of 4,500 news organisations around the world into a rolling-news front page of its own, and Google Books, which plans to digitise every book ever published and make them all searchable online.

Google and content publishers agree on one fundamental: copyright laws should be respected. They disagree, though, on two important questions: whether Google is already infringing copyright, and how publishers should be compensated when copyrighted material is used.

"What characterises Google is its very aggressive approach to copyright law," said Lee Bromberg, a partner at the Boston-based law firm Bromberg & Sunstein. "My own view, as someone who often defends intellectual property, is that in every area where Google has pushed it has been over the line, but it has an interesting carrot-and-stick approach.

"The carrot is your content gets to be displayed to Google's vast army of users, which increases rather than diminishes its commercial value to you. The stick is that it says it is just going to access your content as part of the plan to control and organise our knowledge, and that it is up to you to opt out. Well, you can't burden the copyright holder with an obligation to demand their content is not used."

Google started out to catalogue the world wide web, and as an index it had no obligation to pay for the snippets of websites that appear in response to search queries. It says the same applies to news articles it displays on Google News or the books that it is copying to its vast electronic database.

In both cases, it says it is covered by "fair use" provisions of copyright laws around the world, which allow for the use of snippets for the purpose of indexing and review, but it may find it has to defend its position in court in several jurisdictions.

It may be most vulnerable in Europe, where copyright law often asserts "moral rights" as well as prescribing specific tests. A Belgian court last month found Google News infringed copyright and it has been forced to take down all the content from Belgian news sources; Agence France-Presse is suing in France and the US. Google plans to keep fighting both cases.

The content providers are arguing that Google is qualitatively different from a library room full of card indexes: the company is now making more than $16m a day from adverts on its websites.

The Google Books project will make electronic copies of every book with the help of seven libraries including those of Harvard, Oxford University and the New York Public Library, but Google insists it will only allow access to the full text if a book is out of copyright.

In other cases, click a book title and users will see, like a card-catalogue entry, some basic information about the book. They may also see a few snippets of text from the book showing their search term in context. Only if the publisher or author has given permission through Google's partner programme will the user be able to see a few full pages from the book. In all cases, the user will see links that lead directly to online bookstores where they can buy the book.

The Association of American Publishers and the Authors Guild have launched lawsuits against Google, however, saying that the company is breaching copyright by creating electronic copies of their books without express permission. Google says publishers should be grateful. "You'd sell a lot more books if a lot more people knew about them," it tells them.

Angela Mills Wade, director of the European Publishers Council (EPC), said: "The problem is we don't have control over what they are doing with the content. They may just be pointing to it today, but in order to display extracts they have to have a copy, and who knows how search engine businesses will develop and publishers' business models will develop."

Notwithstanding its contention that Google News and Google Books do not infringe copyright, Google promised yesterday that it would work with a new global coalition of newspaper groups and European publishers, which is planning to develop technology that will make it possible to automatically license content to search engine sites and news aggregators.

At the moment, newspapers can demand that links to their stories do not appear on Google News, and they can embed a computer code into their web pages that prevents them from appearing. What the World Association of Newspapers - chaired by Gavin O'Reilly, the chief operating officer of Independent News & Media, the owner of The Independent - proposes is a more sophisticated technology that will automatically allow search engines to sign and even pay for licences to use the content.

Ms Mills Wade of the EPC, which is also involved in the project, said: "You could sue them when they go beyond legal extracts, but who the hell wants to spend their life going to court? That should be a last resort for publishers and it would be immensely tedious for Google."

The embedded code will be called Acap, an automated content access protocol, and a trial, involving several media companies and at least one search engine, will be announced next month. Google said it was "supportive of any proposal that allows search engines and publishers to work together" and offered to help develop the new technology, but it warned that the devil would be in the detail.

Publishers hope that, by making it easy to sign and pay for a licence to use their digital content, more aggregator sites will do so. Earlier this year, Google signed a deal with Associated Press to use larger chunks of their news content on Google News and to pay for the privilege.

Google would prefer not to adopt a widespread licensing model, however, where it would have to pay a lot of upfront fees. It would prefer revenue-sharing partnerships such as those being signed by Google Video and YouTube. Sony BMG and Warner Music are among those to have said they will put all their music videos on YouTube in exchange for a cut of the revenue from advertising sold alongside them. Google Books' partnership programme works along the same lines.

David Eun, head of content partnerships at Google, said: "By enabling people to discover information, Google drives web traffic, customer queries, advertising revenues and sales to our partners, both online and offline."

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