A second problem concerns the imbalance of the contracts drawn up between the partners. ‘In exchange for digitalisation by scanning the libraries receive a copy of the book in the form of a digital file. The copy provided by Google is a simple reproduction in ‘image mode’ and not in ‘text mode’. In fact Google does not have the partner libraries benefit from its innovations and the value added it provides digitised files.’ The Partner Program has also seen differences of opinion emerge between the contract co-signers. ‘Certain publishers are effectively worried that the section of a book which is made visible in ‘restricted view’ on Google Books – for example 30% of the book – is not fixed, which allows access to a large part of the work,  if requests for ‘restricted views’ are made in large numbers.’ In France legal proceedings were initiated in June 2006 by the La Martinière group, of which Le Seuil publishers is a part. In his judgement of December 2009 the judge considered that the digitalisation and placing on line without authorisation and payment infringed author’s rights, and that Google could neither claim to be an exception to the rule regarding author’s rights nor content itself with withdrawing the books in the case of a refusal on the part of rights owners. The judgement recalls that author’s rights require prior authorisation to be obtained (opt-in), and that a distributor cannot offer a model which rests on objections after the fact (opt-out). Since then the parties have signed a settlement, in August 2011. The agreement authorises Google to digitalise works which the publisher has selected beforehand and to gain income for them, part of which will be transferred to the publishers and the authors. This preserves author’s rights whilst at the same time establishing a business partnership which should normally benefit everyone.


2. Google News. In offering a ‘continuously updated selection of articles from multiple online media,’ the aggregators of continuous news flow such as Google News for their part throw down a challenge to the press: that of ‘competition to the access of professional journalistic content through an automated tool.’ In the United States, unlike in Belgium, Google News has already integrated advertising into its service, which enables it to generate income on the basis of information appropriated without authorisation or financial compensation to other media. Press publishers thus see in this a form of parasitical competition. Google justifies its refusal to pay for the use it makes of online articles in arguing that its service benefits the publishers in that it generates traffic towards their contents – which are funded by advertising. ‘A study carried out in the United States nevertheless shows that close to half the visitors to the Google News page do not click on the links to the publishers and thus have no exposure to the advertising on the publishers’ pages.’ The question thus concerns knowing if Google News should be viewed as a substitute product or a new means of distribution for the press publishers. The case which has seen Copiepresse (2) contest Google since 2006 in our country illustrates this conflict very well. From a legal perspective, the judgments delivered in the first instance (February 2007) and on appeal (May 2011) fully agreed with the publishers who were taking legal action for violation of authors’ rights. One of the economic arguments put forward was that the Google service offers information which the majority of online readers are happy to settle for, in other words the headline and the article’s catchline. The affair is interesting in another respect: ‘it highlights another legal limit to the clustering of journalistic content: the moral rights of journalist authors recognized in the European system of authors’ rights does not exist with the same force in the Anglo-Saxon world. In not citing the journalists and in dislocating the original editorial line, Google is also infringing the right to claim authorship and protect the integrity of the content.’

With OnePass, its online newspaper payment platform launched in February 2011 to rival Apple Press, Google nonetheless is on the way to changing its approach in agreeing to pay content producers. FastFlip, another product in the development phase which brings together the ‘front pages’ of online newspapers (in return for compensation for the publishers) is also inscribed in a mode of distribution which is more respectful of authors’ rights. But Google has just announced, in September 2011, that it was bringing it to a close. For Google News, which remains available, Google still refuses to pay publishers, but on the other hand it pays for the agency dispatches it uses. A case of double standards being applied?

(2) Copiepresse is a company which manages the rights of Belgian francophone and German language daily press publishers.