The Council took note in its last meeting in May 2009, of information provided by the German delegation concerning the “Google Books Project” (scanning of books in US libraries for establishing a database on the basis of digital copies) and its possible legal implications as regards copyright matters. Commission was asked to elaborate an assessment and to report back in due course.

German delegation to the European Council meeting held in Brussels on May 28th and 29th 2009, put forward an information note on the Google Books project. According to this information, Google has scanned books from US libraries and used the digital copies to create a database, without the prior consent of the rights holders. The database shows Internet users a catalogue card view as well as, in most cases, short excerpts from the books ("snippets").

For the digitalisation process, Google cites a limit of US copyright law known as the "fair-use" doctrine according to which certain types of use of copyrighted works which have not been expressly approved are admissible insofar as they serve the public interest (such as reporting, education, research, etc.).

American associations of authors and publishers have sued Google in the US for breach of copyright in what is known as a class action. The decision on a class action has an effect not only on the parties to the action but also on all members of a given "class". The dispute is to be resolved by a settlement – which still has to be finally approved by the court on October 7th 2009. The settlement sought would also concern European authors and publishing companies and would therefore have an impact on the European Union.

Authors and publishing companies may avoid the effects of the settlement if they declare by September 4th 2009 that they want to opt out, thus retaining the right to bring an action of their own against Google. Moreover, objections to the content may be submitted before that date with a view to changing the terms of the settlement.

European Copyright issues on Google Books project

According to this information note Google's actions are irreconcilable with the principles of European copyright law, where the consent of the author must be obtained before his or her works may be reproduced or made publicly available on the Internet.

Given that among the books scanned are numerous books by European rights holders, German delegation wanted to raise Member States' awareness of the risks associated with this activity and draw their attention to the fact that Google's actions within Google Books project could have an impact on the concentration of media ownership and on cultural diversity in general, and especially in the European Union.

By digitalising millions of books, the company Google has stolen a march, since the only option open to rights holders is to opt out of the settlement retroactively. As a result of this behaviour, initiatives such as Europeana, which digitalise and make available on line copyrighted works only after prior consent has been obtained from the rights holder, have also lost ground.

Commission was therefore requested to take the matter up and examine the Google Books project as well as the impact of the settlement sought in the USA from the point of view of copyright law, law on restrictive practices and cultural policy and, where appropriate, to introduce new measures to protect rights holders.