Keypoints

The Google Books case concerns claims by a number of copyright owners and organisations that Google Inc infringed their, or their members’, copyright by digitising their works in order to upload the full text to its Google Books website. The parties negotiated a Settlement Agreement, later amended, which purported to bind all copyright owners in respect of a broad class of publications. The Amended Settlement Agreement (“Amended Settlement”) would also have authorised continuing use by Google of publications within the class, unless the copyright owners took steps to notify Google that they did not wish such use to take place. The Amended Settlement would have applied to use by Google within the US of all hard copy materials published by NSW prior to 5 January 2009.

C2011-10 outlined the terms of the Amended Settlement in the US Google Books copyright infringement case, explained how the Amended Settlement affected NSW publications, and advised agencies that publish on a commercial basis, or closely control distribution of their publications, to consider whether they should make claims in relation to some or all of their publications under the Amended Settlement. The Circular noted pending deadlines for actions under the Amended Settlement, including a deadline of 5 April 2011 for claims to have publications completely “removed” from Google Books databases.

On 22 March 2011, however, the US District Court for the Southern District of New York decided not to approve the Amended Settlement. The parties must now decide whether to negotiate a new settlement agreement or recommence the litigation, unless Google appeals against the decision and is successful.

As a result of this development, NSW agencies cannot make claims in accordance with the Amended Settlement. It should be noted, however, that, if any agencies identify any infringements of NSW Crown copyright (whether on the Google Books website or anywhere else), it may be possible to take action to protect the Crown’s rights. If agencies identify any such infringements, they may contact the State Copyright Manager in the Department of Attorney General and Justice for further information, or the Crown Solicitor’s Office for legal advice and representation.

The State Copyright Manager will continue to monitor the Google Books case. For further information on the decision, go to: http://www.lawlink.nsw.gov.au/lawlink/legislation_policy/ll_lpd.nsf/pages/lp_copyrightnews.

Chris Eccles
Director General