Canadian lobby groups have filed objections with the US court considering the proposed Google Books agreement, arguing that it violates international law such as NAFTA and the Berne Convention on copyright. 

“The big concern is that Google is going to end up with a monopoly on digitized literary works,” Paul Jones, professional officer with the Canadian Association of University Teachers (CAUT), said in an interview.

“It will be very hard for anyone else to step in and duplicate what they’ve been able to do. The concern amongst the education community, which is already hard pressed for funds, is that Google will be able to use a monopoly position to really crank up access charges.”

A number of Canadian organizations filed objections with the US District Court for the Southern District of New York before the deadline of Jan. 28, including the CAUT, the Canadian Standards Association (CSA), and a small group of Canadian writers calling itself the Canadian Writers Against Google Settlement (CWAG).

The Google Books settlement agreement has been facing legal questions since a 2005 lawsuit alleged the company infringed copyright as it scanned, without permission, massive amounts of books from major US research libraries to create a global digital library.

Under a 2008 settlement agreement, Google would pay $125 million US to clear copyrights and establish a Digital Rights Registry to identify and compensate copyright owners whose books are distributed digitally online.

The settlement would have given Google exclusive control over millions of digitized books, and critical reaction to the proposed agreement ballooned internationally.

Following pressure from authors and publishers worldwide, particularly in France and Germany, the agreement was revised further to include only countries with similar book publishing industries and legal frameworks.

The agreement was limited to works from the United States, Canada, Australia, and the United Kingdom.

Canada’s inclusion in the revised agreement has led a number of groups to file letters with the US District Court, where a hearing is scheduled for Feb. 18.

The CAUT’s letter says the proposed agreement “puts the United States in violation of international intellectual property law and specifically in violation of trade agreements among Canada, the United States, and other parties as those agreements relate to copyright.” 

CWAG’s letter of objection also says the proposed agreement violates the international Berne Convention on copyright and could violate Article 1102 of the North American Free Trade Agreement (NAFTA), potentially subjecting “the US to trade sanctions under NAFTA.”

“I think it was wrong at law to have the settlement try and include all of the world. It’s wrong at law to try and have the settlement include foreigners,” said David Fewer, legal counsel at the Canadian Internet Policy and Public Interest Clinic (CIPPIC), who wrote the letter on behalf of CWAG.

“What the United States court tries to do within the boundaries of its own American authors is one thing, but what it tries to do to foreign authors is another.”

The CSA, whose members hold the rights to copyrighted standards, has also objected to the proposed agreement, arguing that it is “anticompetitive, arguably violates antitrust laws,” and improperly uses the courts to “force a perpetual business deal” on copyright owners.

The Canadian Urban Libraries Council, in an Aug. 31, 2009 letter to the court, is more supportive of the proposed agreement, saying it could make an enormous contribution to libraries.

But the organization adds that it wants to protect universal access, subscription pricing, and confidentiality in the interest of Canadian library users.

CWAG’s letter says that the agreement could violate Article 1102 of NAFTA, which stipulates that parties must provide investors of other parties with the same treatment as its own investors.

The proposed agreement could also violate the Berne Convention because Canadian authors would be required to “comply with the terms of the Amended Settlement in order to prevent Google from copying, indexing, and potentially profiting from his or her copyrighted work,” CWAG’s letter says.

The group argues that a simple solution to this would be to allow foreign authors “to opt-in to the Amended Settlement instead of being forced to opt-out.”

The group adds that the proposed agreement could invade privacy by failing to protect “the right to read anonymously”—particularly when Google’s business model is “based on monitoring and monetizing its users’ browsing habits.”

Google spokeswoman Tamara Micner told The Wire Report by email that the letters are “another step in the approval process of the settlement. There have been many organizations and individuals who have filed their support with the Court. They believe, as we do, that the settlement will open access to millions of books.”

The Canadian Publishers’ Council (CPC), representing Canadian publishers and Canadian subsidiaries of the international publishers, says in a letter to the court that its members voted unanimously “at a meeting of member CEOs in December 2009” to support the agreement.

The organization views control of members’ “copyrights and all uses of their published works as paramount” and the settlement “affords them the necessary flexibility to manage their Works,” the CPC says.

The CPC notes that one of its members, the Canadian-owned Harlequin Enterprises Ltd., is a plaintiff in the case.

The CPC did not respond to calls, but its letter says that the Google Book Rights Registry will include at least one director from the Canadian publishing industry; the registry will monitor the international use of works to ensure Canadian rights holders are remunerated; publishers will have the right to prevent Google from scanning works; and that rights holders “will have time to decide whether they will permit those works to be made available through the active database.”

“There are exceptions, but it seems that the major publishers, many of whom are Google partners in the venture, seem supportive, whereas independent writers, academic authors and smaller publishers, are not,” Howard Knopf, a copyright lawyer with Macera & Jarzyna LLP in Ottawa, said in an interview.

“But even J.K. Rowling doesn’t like it. So go figure.”

Knopf said he is not surprised that critics are suggesting the proposed agreement violates international law. The case raises questions about whether a US District Court should be exercising extraterritorial jurisdiction, he said.

Knopf said the proposed settlement is important to Canadians because it affects Canadian authors and publishers—as well as Canadian users of the Google Books digital library.

“Google has to be careful that they’re not violating foreign laws,” Knopf said. “So one way they’d want to be safe about that is to keep the thing as much as possible inside an American firewall.”  

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