In 2004, Google launched its “Books Library Project” in order to create a universal library online by digitising books and making it available for consultation on one of its application. This initiative was followed, the next year, by a copyright infringement case brought by the US Authors Guild and five majors US publishers.

Finally, in October 2008, they reached a settlement which has been amended some months later. The Google Book Settlement is not finalized yet, awaiting US Department of Justice approval. Nonetheless, the deal was the best they could get at the moment.

On the 17th of November, Google and Hachette Livre, the largest publisher in France and the No.2 trade publisher by sales worldwide, have reached an agreement authorizing Google to scan and sell electronically its out-of-print French language titles under the control of the publisher. This agreement covers about 50,000 French titles, including literature and nonfiction works, still under copyright protection.

The two deals are different: but why?

Judicial history is different, culture is different and political background is different

In December 2009, the search engine company was found guilty of copyright infringement by the High Court of First Instance of Paris for digitising the books of the French publisher La Martinière and putting extracts online without its written prior approval. The case was brought by La Martinière, the French publisher’s union (SNE – Syndicat national de l’édition) and a publishers and authors’ group (SGDL – Société des gens de lettre). All the more, several French major publishers, including Hachette, declared their intentions to sue Google for the same reasons.

These cases are related to the initial version of the Books Library Project. In this Google application, in order to answer to their search queries, users were allowed to read the full text of public domain books but only few paragraphs in titles still protected by copyright.

In front of the US Courts, Google initially defended its application with the Fair Use exception defined as an exception to the exclusive right of the copyright holders in the US Copyright law1, since for books still protected by copyright, the users will only see a few sentences on either side of the search terms. Google explained that its application was a fair use exception for research and teaching purposes.

The French court decision mentioned above shows that this system of defence is not valid in France. Traditionally, the French Intellectual Property Law is more protective than the US Copyright Law for the authors and copyright holders, who are, in addition, more aggressive when it is about to defend their IP rights.

Besides, the French President, Nicolas Sarkozy, supported the publishers’ actions by threatening Google to try to tax Google’s French advertising revenue and to call for an inquiry by French competition authorities into a possible abuse of dominant position in the advertising business2.

Consequently, Google had to adopt a different approach with the French publisher than with the US ones.

What is the French deal all about?

Although these two deals have the same purpose, the authorization of scanning and electronically selling publishers’ library, they present important differences, making the French deal way much better for the copyright holders.

  1.  Hachette keeps control over which books Google is allowed to scan. The search engine company has to notify to the publisher the list of books it planned to digitize each quarter and has to wait for Hachette’s approval. On the opposite, under the Google Book Settlement, publishers and authors have to state upfront whether they want to opt-in or out of the deal to make their book available.
  2.  Hachette sets the sale price of its e-book and then the two companies share revenues on a non disclosed basis. On the other hand, the US settlement provides that Google is to receive 37 per cent of the sale and the copyrights holders the rest.
  3.  Furthermore, the deal is not exclusive for Hachette. Google will send to the publisher a copy of the scanned works and the publisher will be able to make the same books available for other electronic selling platforms. For instance, Hachette has already concluded a deal with Apple for the commercialization of digital books on iPad.
  4.  The Hachette deal with Google is an agreement and not a settlement since the publisher retains the right to take legal action against Google over its past book scanning activities. Arnaud Nourry, chairman and chief executive of Hachette Livre, explained that the two companies “have agreed to disagree on the past” and that this deal “had nothing to do with a waiver of our claims concerning Google’s past practices”3.

Dan Clancy, director of Google Books, called the agreement “a win win win deal”: “for Hachette, for Google and the French readers”4, considering that this “agreement could be a framework for deals with other European publishers”5.