Commentary is flowing fast and furious on what the rejection of the Amended Settlement Agreement brokerd by the plaintiffs with Google means. It is hard to imagine, however, a better analysis than that prepared by Jonathan Band for ARL (though if you want something written with more heat, try "To the whingers go the spoils in the Google book decision").
I've been curious as to what the settlement's critics would like to seen in its place. Norway is frequently trotted out as an alternative approach. In his discussion of the decision in the New York Review of Books, for example, Robert Darnton states that:
The most impressive attempts to create national digital libraries are taking shape in Norway and The Netherlands. They have state support, and they involve plans to digitize books covered by copyright, even those that are currently in print, by means of collective agreements—not legalistic devices like the class action suit employed by Google and its partners, but voluntary arrangements, which reconcile the interests of the authors and publishers who own the rights with those of readers who want access to everything in their national languages.
Similarly in his Op-Ed piece in the New York Times on "A Digital Library Better Than Google's," Darnton cites Norway as one of the countries that is "determined to out-Google Google by scanning the entire contents of their national libraries."
I wonder, though, if the people who cite Norway as a possible model have read the agreement between the Norwegian Digital Library and Kopinor, the Norwegian copyright licensing agency that administers extended collective copyright licenses. If this is the alternative, then I fear that academia will rue the day that the settlement failed. Both in its costs and functionality, the Norwegian model is far from "out-Googling Google." Consider:
- The Norwegian agreement requires that the Library pay roughly $0.10 per page per year for every title included in the collection (§ 7). It estimates that books have on the average 185 pages (§ 1). That means $18.50 a year per title per year, regardless of whether the books are ever claimed, consulted, or used. It is difficult to compare this to the Google settlement, which had a much higher initial payment for scanning but then predicated future payments on actual use. But since we know that it is likely that most of the books that Google scans will never be consulted, the argument can be made that the Norwegian model will prove to be much more expensive.
- There are 50,000 books that are covered by the agreement (§ 1), for what is likely to be an annual payment of just under 1 million dollars. Michael Cairns, in his study on the number of orphan works, cites Bowker estimates that 2 million books were published in the US between 1920 and 2000. Does anyone expect the Library of Congress any time soon to start shelling out $37 million a year in license fees for access to mostly out-of-print books?
- What you can do with the books is much more limited than under the Google settlement agreement. You can only view the books one page at a time, which makes sense, since you can't download or print the contents (§ 4). How useful is that? With Google, you would have been able to view 20% of the book for free, and through an institutional subscription, have been able to download or print.
- The Kopinor agreement is only for 3 years (§ 21), and if it is not renewed, the digitized books must go away (§ 13). The Google agreement contained provisions that would have ensured that the digitized books in the Google product would still be accessible, even if Google decided to leave the book business entirely.
- The Norwegian agreement was possible because Norway already had a collective rights management organization, Kopinor. The Google agreement would have created such a group for the US: the Books Rights Registry. Without the settlement, there is no one left to front the millions it would take to create such a group.
Maybe it would be a better solution to have the Federal government pay whatever fees rights owners demand in order to have their books be included in a national digital library database (though I would hope that range of uses would be greater than Norway allows). I would think, though, that securing national licenses for current academic and research journal collections would be even a higher national priority. National access to current research would be an efficient and effective method of maintaing excellence in research and improving national productivity. There are, however, no U.S. national licenses for journal databases (even though they are common in many European countries). I don't know why it would be easier to get Federal money to pay the licensing fees for out-of-print and/or mostly outdated books. In a era of Tea Party politics and concerns of massive annual deficits, it is difficult to imagine the national government stepping in to fund a digital books initiative.