The Canadian Path To Google Print

The decision by the Author' s Guild to sue Google over its Google Print initiative is obviously the story of the week.  I' ve stayed quiet on this primarily because there have been some great postings (Lessig, von Lohmann, Band, Crawford, and Google' s own response among them) that say far more than I can about U.S. law.  Their analysis, which focuses on U.S. fair use, provides a compelling argument that the Google plan is lawful given its social benefits, the minimal content being displayed by Google, the ability to opt-out, and the reality that there is little difference between search engine indexing of content found on websites and the scanning of content found in books.

Moreover, I' m saddened that there is a limited Canadian angle on this story.  Canadians (whether publishers, authors or the general public) would obviously benefit from the existence of Google Print, however, our copyright law is a major impediment.  The Supreme Court of Canada may want a broad interpretation for our fair dealing user right, but it is difficult to interpret it so broadly as to equal fair use.  I further believe that there is currently a tremendous opportunity for Canada to create a national digital library, yet thus far there has been little indication that the government has any appetite for such an undertaking.

It was the University of Michigan' s defense of the Google Print program, however, that led me to post on the issue.  Canadian libraries have not been entirely silent on copyright and access to knowledge issue (the CCH case is the most important copyright case of at least the past decade; last week I blogged about the Grand Bibliotheque in Montreal), yet they have not emerged as the force we desperately need.

Canadian political leaders offer virtually no vision of the transformative effect of new technologies on access to knowledge.  Instead we get op-eds such as the one from Ministers Emerson and Frulla this past summer that acknowledges the strength of the U.S. fair use approach but talks blandly of more consultation and that "good public policy can only emerge from a full, open and constructive dialogue."

Compare those statements with those from the University of Michigan defending the Google Print project:

"This project represents an enormous leap forward in the public's ability to search and find knowledge. Throughout history, enormous breakthroughs in technology have always created challenges, but we cannot lose sight of the tremendous benefits this project will bring for society.

The Google library project will transform the way we do research and scholarship. For the first time, everyone will be able to search the written record of human knowledge. It also allows libraries to create a digital archive that preserves this material for all time. Only libraries are tasked by the public with the responsibility of archiving all the world's written works. No other entity can take on this responsibility.

This is a tremendously important public policy discussion. In the future, most research and learning is going to take place in a digital world. Material that does not exist in digital form will effectively disappear. We need to decide whether we are going to allow the development of new technology to be used as a tool to restrict the public's access to knowledge, or if we are going to ensure that people can find these works and that they will be preserved for future generations."

Canadian culture and knowledge needs Google Print and other similar initiatives.  To get there, we need leaders and institutions with the courage and vision of the University of Michigan.


  1. Michael, there’s a dimension to this story that perhaps everyone is missing. That is the tremendous power that private sector, unaccountable Google would get by becoming the dominant gatekeeper to the world’s knowledge. I would argue that Google is already too powerful.

    I have a public interest website that took months after initial creation to be indexed; then disappeared from search results for a few months; then reappeared, I hope permanently. (Google “Vending machines in Ontario schools”.) Nothing sinister, but it highlighted a misconception. The public has the idea that a Google search returns every web site that meets the serach criteria. That is not the case, and the bigger the Net gets, the less true it is.

    A web site that is not indexed is better than no web site at all, but not by much!

    The recent criticism of Yahoo for cooperating with the Chinese government in identifying a dissident is just a hint of the effect on free dissemination of information that could result if we rely on one dominant indexing service – and it seems to be in the nature of the Net that the big fish grow at the expense of the little ones – look at Google and Amazon.

    Just a thought.

  2. Guvmint
    I don’t know that it’s the role of THE government to build a Canadian digital library.

    Yes there’s a role for the federal government:

    1) Funding: Fund digitization projects for published materials, recordings, archival records (starting with the finding aids of the National Archives), photographs, documentary art, and so on. But not just willy-nilly: funded projects should be measured objectively, meet their goals in order to receive further installments, and — importantly — allow any other digital collection to accession their content on a reciprocal basis. There is a desperate need for funding in this area, but more importantly, there’s a desperate need for SMART money, not just more money.

    The federal government does not, however, have the sole funding responsibility. Where are the provinces, local institutions, and the private sector? Where’s our Canadian Google?

    2) (De)-Regulation: Get the Copyright Act out of the way of such efforts.

    First, there have to be some serious amendments to the Act to eliminate certain ambiguities which make it difficult, and even impossible, to determine copyright status in many works.

    Second, we need a Uruguay-type amendment which provides that, in the case of a dead-end trail of copyright ownership (author/owner dies or goes bankrupt, no natural heirs, intestate, copyright wasn’t assigned or licensed), the work can be declared public domain long before life+50 every expiries; without a copyright owner, there should be no copyright.

    Third, resist the pressure to extend the term; doubts are already being raised, after the fact, about the wisdom of term extension in other countries. Canada should not extend terms domestically, and should lead an international effort to draw a line in the sand, perhaps by treaty, to forestall further extensions around the world.

    Finally, get the collectives — this means you, Excess Copyright and Copibec — out of the business of collecting license fees for unlocateable copyright owners. Neither they, nor their members, had anything to do with the creation of such works; they should not be entitled to collect one red cent. The sweetheart deals that the Copyright Board has signed with the collectives should be terminated immediately, and to the extent that legislative changes are required, those changes should be made that would allow the Board itself to collect those license fees (and refund them to the user if the bona fide owner does not present within the limited time.)

    3) Leadership: Library and Archives Canada should take a leadership role in this. Co-ordinate some efforts across the country to prevent wasteful duplication. Provide some office space, scanners and servers, access to the LAC collections. Stand up to Canadian Heritage on copyright issues, and lead other institutions in doing the same. It’s terribly funny, at least to me, that some of the Canadian leadership in terms of such matters, at the moment, is coming from Quebec, which has traditionally been most blindly subservient to the “creator’s rights” rhetoric.

    And if Canadian Heritage won’t take the lead on funding and policy that will allow for the creation of Canadian digital libraries (plural), they should get the hell out of the way. Let Emerson’s shop do the heavy lifting.

  3. Correction
    It’s the Dominican Republic that has the clever solution to the dead-letter copyright problem:

    Art. 23.- Si no hubiese cónyuge, herederos ni causahabientes del autor, la obra pasará al dominio público desde el fallecimiento de éste.

  4. John Chandler says:

    Government Support
    It may be a benifit to us all for the govt to get behind this