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U.S. Google's "Book Search" service may cover out-of-print Japanese books

3, 11. 2009

   The "Google Book Search" service being operated by Google of the United States is calling for a widely spread concern. The litigation over the digitalization of the contents of books that are already out of print but still copyrighted is about to reach a court-mediated settlement, and this is said to have an impact on Japanese books. If there are Japanese books existing in the United States satisfying the U.S. regulations as out of print, it is said to be possible that the contents of such books will become accessible over the world. Objection from the Japanese publishing industry is inevitable. But experts say that the move should not be objected to as long as profit will be fairly distributed. They say, "It would be better than 'burying' the books as mere paper." Thus there are opinions that the right of the copyright holders should be reviewed.

Progress being made in digitalization of out-of-print but still copyrighted books

   The U.S. Google launched the "Google Book Search" in 2004, under which more than 1 million different titles of books can now be searched on the internet. Copyright holders are objecting the system as a matter of course. The Authors Guild and the Association of American Publishers (AAP) sued Google in September through October 2008, respectively, over their claims of infringement of copyright.

   About three years later on Oct. 18, 2008, it was announced that Google and the U.S. publishers industry would reach a court-mediated settlement. The settlement called for the payment of 120 million dollars by Google and making of a system to make it possible to search for and purchase books on the internet with cooperation from copyright holders. A court approval is required for the settlement to be concluded. If it is concluded, a progress will be made in the digitalization of the contents of books that are already out of print but still copyrighted, and it will become possible to search and buy them on the internet. A non-profit organization is to be formed to distribute the profit from such sales on the internet to copyright holders and other parties concerned.

   The provisions stipulated in the projected settlement are now widely discussed as they became known to be binding for copyright holders in Japan. This became widely known as a result of a legal notice carried by the Feb. 25, 2009 issue of the Japanese-language version of the Newsweek magazine. The headlines of the notice, (translated as closely as possible), goes:

"To the residents outside the United States: This settlement, as it is concerned with the right of the U.S. copyright of books published outside the United States, may affect you. The right-holders of books, or other materials contained in books, unless steps are taken at an appropriate time to exclude themselves from the settlement, will be bound by the settlement."

Huge influence expected if made available on internet and accessed in Japan

   It is very difficult to understand the effect of the projected settlement only by reading the headlines. The litigation introduced at the outset was filed in the form of a "class action" in which a plaintiff represents others who have interest in common. The characteristic of a "class action" is that the court decision and settlement are binding for all of those who have interest in common besides the plaintiff who directly files the suit with the court. In other words, the latest settlement has the binding power for all the out-of-print books in the United States, including those printed in Japan and brought into the United States. The legal notice presents the alternatives of: (1) filing a request for exclusion from the settlement or, (2) requesting for payment of money (that would be distributed to those for their copyrighted works), in accordance with instructions indicated on the website, (

   Jiro Makino, lawyer who is expert in the copyright law, said:

"As far as Google is concerned, it may be their strategy to involve all the copyright holders within the United States by taking the form of the latest class action. If it happens that the contents of books that are scanned are made available on the internet and can be read in Japan, there is likely to be a huge impact on Japan also."

   For the copyright holders in Japan, the settlement may have come as a complete surprise. But Makino holds that it would not wise for the right holders to "bury" their works as long as their works are made available on the internet for an appropriate share of profit for them.

   "Actually, it would be better if something like the latest arrangement (the court settlement in the United States) develops in our country. But it would be difficult for some time to come. If this is the case, there should be no need of refusing (the arrangement) as long as profit is fairly distributed as it happens that music sells well on iTunes. There is no need of distinguishing copyrighted products 'printed on paper from digitalized ones'. I don't think there is a way to survive in the future by keeping the products on paper and refusing to make them public and, so to speak, keeping them 'buried'," he said.

   A hearing by the court for an approval of the settlement is scheduled for June 11.

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