Amended Google Book Settlement agreement: More about the changes

[wolfinthewood]

Previous posts on the Amended Google Book Settlement Agreement:

The Countries involved, and the New Plaintiffs

The Timetable

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Changes to the kinds of works included

There are changes to the definitions of 'book' and 'insert' (that is, roughly, a short work, such as a story, poem, essay or foreword included in a larger work written or edited by a different author):

Music notation and children’s book illustrations are excluded from the definition of “Insert,” and works for which 20% of pages contain more than 20% music notation are excluded from the definition of “Book.” Books reproduced in microform are now excluded from the definition of “Book,” as are calendars. Finally, comic books and compilations of Periodicals now are explicitly treated as Periodicals, and are thus excluded from the definition of “Book.”

(Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Amended Settlement Agreement, pp. 4-5)

However:

The Amended Settlement does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement.

(Attachment N to the Amended Settlement Agreement: Supplemental Notice To Authors, Publishers And Other Book Rightsholders, section 18)

These changes let Google and the plaintiffs off the hook, or largely so, with some of the big objectors and critics: Proquest, the specialist academic publisher, a pioneer in microfilm publishing; D. C. Comics, publishers of Batman, Wonder Woman, etc; and the Song Writers Guild of America. According to the Memo in Support (p. 5 n.3) the SGA was permitted to engage in direct negotiations with the lawyers drafting the revised agreement, and have now agreed to withdraw their objection.

I imagine that the removal of all music notation from the scope of the settlement would have been necessary in any case, following the firm behaviour of EMI Music Publishing and Sony/ATV Music Publishing, both of whom opted out in letters to the court that made it perfectly clear they intended to defend their rights: also that these giants had no intention of providing Google with a helpful list of their millions of copyrighted works. Presumably Google's software engineers are currently scrambling to put together a program that can pick out musical notation on a scanned page.

The inclusion of children's book illustrations always was a bit of an anomaly, when all other illustrations were excluded. Representatives of photographers, illustrators and other visual artists twice tried to persuade the judge to include them as a settlement class, with separate representatives, and were twice refused (short summary here). There was no children's book illustrator among the original set of 'representative plaintiffs'.

So as I read the passages above, the children's book illustrators who are not the authors of the books they illustrate, and who have not assigned copyright in their pictures to the author/publisher, are now outside the scope of the Google Book Settlement: their images will not be displayed, or sold, under its provisions, and they are not bound by the agreement. (But if you are a children's book illustrator, do read these passages through yourself, and take proper professional advice if you are not clear about anything.)

Graphic novels and children's pictures books where the author and the illustrator are the same person are still included in the settlement, as Attachment N makes clear.

Why are illustrations not included in the GBS? It has been suggested that Google didn't want to mix it with Getty Images, and Corbis (owned by Microsoft), the giants of the stock image world.

The visual artists' organisations have been quite critical of the settlement. In their objection to the court, they stated, for instance, that they do not believe that the terms of the Proposed Settlement would provide fair compensation to all Visual Arts Rights Holders for past and future infringements arising from the G[oogle] L[ibrary P[roject] if they were included on the same basis as creators of other "Inserts"'.

The following passage is from the press release put out by the American Society of Media Photographers after the second occasion in which Judge Chin (presiding over the Google Books case) refused to admit the visual artists as plaintiffs: 'If allowing photographers and other visual artists to intervene would, as the Court stated, "put the entire settlement at risk," it is because, in ASMP's view, the settlement is fundamentally flawed and should not be approved by the Court.'