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Diane Mullenex, Avocat à la Cour and Solicitor England & Wales, partner in charge of the TMT department, , and Jacques Mandrillon, Avocat à la Cour,TMT Department of the law firm Ichay & Mullenex Avocats: Why is the French deal of Hachette with Google so much better than the one reached by the US publishing companies?

November 2010 by Diane Mullenex, Avocat à la Cour and Solicitor England & Wales, partner in charge of the TMT department, , and Jacques Mandrillon, Avocat à la Cour,TMT Department of the law firm Ichay & Mullenex Avocats

In 2004, Google launched its “Books Library Project” in order to create a universal library
online by digitising books and making it available for consultation on one of its application.
This initiative was followed, the next year, by a copyright infringement case brought by the
US Authors Guild and five majors US publishers.

Finally, in October 2008, they reached a settlement which has been amended some months
later. The Google Book Settlement is not finalized yet, awaiting US Department of Justice
approval. Nonetheless, the deal was the best they could get at the moment.
On the 17th of November, Google and Hachette Livre, the largest publisher in France and the
No.2 trade publisher by sales worldwide, have reached an agreement authorizing Google to
scan and sell electronically its out-of-print French language titles under the control of the
publisher. This agreement covers about 50,000 French titles, including literature and nonfiction
works, still under copyright protection.

The two deals are different: but why?

Judicial history is different, culture is different and political background is different
In December 2009, the search engine company was found guilty of copyright infringement by
the High Court of First Instance of Paris for digitising the books of the French publisher La
Martinière and putting extracts online without its written prior approval. The case was
brought by La Martinière, the French publisher’s union (SNE – Syndicat national de l’édition)
and a publishers and authors’ group (SGDL – Société des gens de lettre). All the more,
several French major publishers, including Hachette, declared their intentions to sue Google
for the same reasons.

These cases are related to the initial version of the Books Library Project. In this Google
application, in order to answer to their search queries, users were allowed to read the full text
of public domain books but only few paragraphs in titles still protected by copyright.
In front of the US Courts, Google initially defended its application with the Fair Use
exception defined as an exception to the exclusive right of the copyright holders in the US
Copyright law1, since for books still protected by copyright, the users will only see a few
sentences on either side of the search terms. Google explained that its application was a fair
use exception for research and teaching purposes.

The French court decision mentioned above shows that this system of defence is not valid in
France. Traditionally, the French Intellectual Property Law is more protective than the US
Copyright Law for the authors and copyright holders, who are, in addition, more aggressive
when it is about to defend their IP rights.

Besides, the French President, Nicolas Sarkozy, supported the publishers’ actions by
threatening Google to try to tax Google’s French advertising revenue and to call for an inquiry
by French competition authorities into a possible abuse of dominant position in the
advertising business2.
Consequently, Google had to adopt a different approach with the French publisher than with
the US ones.

What is the French deal all about?

Although these two deals have the same purpose, the authorization of scanning and
electronically selling publishers’ library, they present important differences, making the
French deal way much better for the copyright holders.

1. Hachette keeps control over which books Google is allowed to scan. The search
engine company has to notify to the publisher the list of books it planned to digitize
each quarter and has to wait for Hachette’s approval. On the opposite, under the
Google Book Settlement, publishers and authors have to state upfront whether they
want to opt-in or out of the deal to make their book available.

2. Hachette sets the sale price of its e-book and then the two companies share revenues
on a non disclosed basis. On the other hand, the US settlement provides that Google is
to receive 37 per cent of the sale and the copyrights holders the rest.

3. Furthermore, the deal is not exclusive for Hachette. Google will send to the publisher
a copy of the scanned works and the publisher will be able to make the same books
available for other electronic selling platforms. For instance, Hachette has already
concluded a deal with Apple for the commercialization of digital books on iPad.

4. The Hachette deal with Google is an agreement and not a settlement since the
publisher retains the right to take legal action against Google over its past book
scanning activities. Arnaud Nourry, chairman and chief executive of Hachette Livre,
explained that the two companies “have agreed to disagree on the past” and that this
deal “had nothing to do with a waiver of our claims concerning Google’s past
practices”3.

Dan Clancy, director of Google Books, called the agreement “a win win win deal”: “for
Hachette, for Google and the French readers”4, considering that this “agreement could be a
framework for deals with other European publishers”5.
What will be the business model of Hachette is yet to be seen…


Ichay & Mullenex Avocats is a French law firm focusing on all legal issues related to the new
technologies in France and abroad. They are considered experts in intellectual property and
Internet law, e-commerce, online gaming, data protection. Ichay & Mullenex Avocats also
assists its clients on all issues related to financing, mergers & acquisitions, restructuring, etc.
and advises them on their litigation and arbitration procedures.
www.ichay-mullenex.fr

1 “The fair use of a copyrighted work (…) for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair use the factors to be considered shall
include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work” – sections 107 of the US Copyright Law.

2 http://www.ft.com/cms/s/2/1df484d4-fbc7-11de-9c29-00144feab49a.html#axzz15iktax19
3 http://www.nytimes.com/2010/11/18/business/global/18book.html

4 http://www.lesechos.fr/investisseurs/actualites-boursieres/020937799071-hachette-signe-un-accord-surpriseavec-
google-sur-les-livres-epuises.htm
5 http://www.reuters.com/article/idUSTRE6AG3JG20101117


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