Open Access News

ALPSP has maintained close contact with Google during the development of Google fulltext indexing and Google Print for Publishers. Indeed, the Association has encouraged members to enable fulltext indexing of their online publications, and published in April 2004 an 'Advice Note' on 'Enabling Google to Index your Fulltext Content', written for us by Kiran Bapna and Anurag Acharya of Google. We also encouraged participation in 'Google Print for Publishers', mentioning it frequently in our members' newsletter ALPSP Alert, and have reported the experience of those members who do participate in either initiative. Both of the above initiatives, however, are carried out in the context of explicit agreements with participating publishers? thus, the copying and resultant indexing of content which they entail is done with publishers' permission and therefore does not infringe copyright....'Google Print for Libraries', on the other hand, was apparently developed without any consultation with publishers. It entails making complete digital copies of publications, including – in the case of some of the participating libraries – works which are still in copyright. Irrespective of whether the results may be damaging or beneficial to the copyright owners, the fact remains that copying on such a scale is in clear contravention of copyright law and is not covered by any exception in any relevant legislation. Permitting publishers to 'opt out' is not an acceptable substitute for proper licensing in the first place; while we appreciate that publisher-by-publisher negotiations could be impractical, by working through representative trade organisations, or even collective licensing agencies, it should be possible to negotiate a workable licensing framework....Google has variously stated that it wishes to collaborate fully with publishers? that it believes that the copying involved is covered by Fair Use/Fair Dealing (which we absolutely dispute)...and that the copying is justified by the beneficial nature of the resultant use (which is no defence, in our view, against a copyright infringement). The Association of Learned and Professional Society Publishers calls on Google to cease unlicensed digitisation of copyright materials with immediate effect, and to enter into urgent discussions with representatives of the publishing industry in order to arrive at an appropriate licensing solution for 'Google Print for Libraries'.

Comment. The ALPSP language ("enter into urgent discussions") suggests a grievance. But the association is careful not to say that the Google copying is harmful. It even leaves open the possibility that the Google copying is beneficial. Now I acknowledge that even harmless and beneficial copying might infringe copyright. So from a legal perspective, the publishers might have an objection no matter what. But from a policy perspective --e.g. whom to support or how to revise the law-- it matters whether publishers are being injured or whether they are asserting an abstract property right without an injury.