Google Book Settlement: the Proposed Book Rights Registry 1

For earlier posts on the Google Book Settlement, see:

Google Book Settlement: the Background

How the Google Book Settlement affects European authors and rights-holders: 1

How the Google Book Settlement affects European authors and rights-holders: 2

***

10. The Book Rights Registry is charged with representing the interests of the rights-holders who are registered with them in connection with the Google Book Settlement. (It is envisaged that they may also represent them in arrangements made with companies other than Google, but at present this is only hypothetical.)

[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 6.2.(b)]

The Registry is not charged with representing the interests of those rights-holders who do not register with them because they are in ignorance of the existence of the Settlement. Under the terms of the Settlement, no one represents the interests of this class of copyright-holder.

11. The Board of the Book Rights Registry is to consist of an equal number of publishers and authors. The Agreement does not specify how the directors are to be appointed. However, it does state that the Registry will be set up by the plaintiffs, that is, the Authors Guild and the AAP. At the conference at Columbia Law School, Michael J. Boni, lead counsel for the Authors Guild in negotiating the Google Book Settlement, told a questioner from the floor that the author directors will be directly appointed by counsel for the Authors Guild and the Guild itself, and the publisher directors will be directly appointed by counsel for the AAP and the AAP. The Authors Guild and the AAP have no plans to appoint directors who are not members of their respective bodies. This was also the substance of the answer to a question on this point put by the UK Publishers Association to Debevoise and Plimpton, the lawyers representing the AAP.

[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html;
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B]

12. There is no provision for foreign publishers and authors to be represented on the Board of the Book Rights Registry. This was raised as a point of concern from the publishers’ side by Herman Spruijt, President of the International Publishers Association, who spoke at the Columbia conference.

[http://kernochancenter.org/Googlebookssettlementrecording.htm;
http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]

There are many reasons why this is troubling. US and foreign authors and publishers cannot be said to have identical interests in the management of the Registry and the proposed operation of the book service.

One point that suggests itself concerns compliance. Since the digitised book corpus will only be accessible for commercial purposes within the USA, foreign rights-holders who register will find it difficult to know whether their work is being used or excluded from use in accordance with the terms that they have stipulated. Moreover, they arguably have a greater interest in Google’s taking steps to maintain territorial security; and there is no doubt that if Google is really serious about confining access to users within the USA, determined measures will have to be taken. I shall have more to say later on about the risks this project presents for losing control of content.

It may be noted that under the rules of the Authors Guild, membership is specifically restricted to authors of works that have been published ‘by an established American publisher’. This is another strong argument that its members cannot be taken as representative of the entire settlement class covered by the provisions of the Settlement, since many of the foreign authors whose works have been digitized by Google have never been published in the USA.*

[See https://www.authorsguild.org/join/eligibility]

Post Scriptum

*This is a matter of some importance, since in order for the Settlement to be ratified by the court, the judge must be satisfied that the Authors Guild is an appropriate representative of the class of people affected by it. This point was made by Pamela Samuelson in a lecture at the University of North Carolina on 14 April 14 2009.

[see http://www.youtube.com/watch?v=P-9MjgAheHg]

Coming next: the Book Rights Registry database; more on so-called 'orphan works'; procedures for resolving disputes

Google Book Settlement: Some Clarifications

It has occurred to me, several days in, that some further clarification of my purpose in these posts is probably in order.

Back in May, when I realised what was being proposed under the Settlement, and also that several of my own works had been digitised by Google, I needed to know more about what this meant. In the UK, the advice on offer to authors seemed to be along the lines of ‘Google is handing out money, run along and register soonest.’ I couldn’t find anything in the way of a proper analysis of the pros and cons of the proposed Settlement, either for the individual author or in relation to the future direction of literary culture. This was in contrast to the US, where a lively, and in my opinion healthy, debate was in progress. However, the interests of US writers and scholars in this matter are not necessarily identical to the interests of Europeans: as a number of US commentators have acknowledged.

I am not a lawyer (the traditional disclaimer). I am a scholar, with a scholar’s instincts: research and analyse. I set out to investigate the Settlement.

What I found out disturbed me very much, as a reader and scholar as well as an author. It was a fairly demanding task, researching the Settlement, even for a trained scholar with good web skills, and that troubled me too. What is being proposed is in its nature complicated; the documents setting it out are not always easy to follow; and it is harder still to work out all the implications. I owe a great deal to several US legal experts who have given their views on the Settlement in papers and podcasts. A number of other perceptive commentators, writing or speaking from within the spheres of writing, publishing and librarianship, have also offered me much to think about.

I am not aiming in these posts to give advice to authors or rights-holders about what action they should take. My purpose is to explain why the Settlement is, as I see it, highly problematic: focusing primarily on how it bears on non-US rights-holders.

This said, I shall point out the obvious, which is that whatever they intend to do, it would be sensible at this point for authors and the executors of authors’ estates to dig out their old contracts, and if there are any reversion clauses that they should have formally invoked, and haven’t, this seems like a good time to do that.

Under the provisions of the Settlement, those who do not plan to opt out (which must be done by 4 September) have until 5 January 2010 to put in a claim for a share of the money which Google Inc. is offering to rights-holders whose work was digitised without their permission on or before 5 May 2009.

[http://www.googlebooksettlement.com/Final-Summary-Notice-of-Class-Action-Settlement.pdf]

Rights-holders who neither opt out nor put in a claim by 5 January may register their works with the Book Rights Registry at a later date, but will not be recompensed for the digitisation.

[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 13.3]

Rights-holders who do not opt out of the Settlement may still arrange to have their books removed from Google’s database, but only if they fill in the claim form for them on or before 5 April 2011. After that date, Google will only exclude their books from the database if they have not already been digitised.

[http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf, § 8.A]

It may be noted here that this implies that Google plans to continue digitising works belonging to rights-holders defined as Settlement Class Members into the coming years. Within the terms of the Settlement it can only digitise works published on or before 5 January 2009. Rights-holders of works that are scanned after 5 May 2009 will not be recompensed for having those works digitised. (Of course, dependent on their instructions to the Registry, they would be eligible for a share of any income flowing from advertising, institutional subscriptions, etc.)

Google Book Settlement: the Proposed Book Rights Registry 1

For earlier posts on the Google Book Settlement, see:

Google Book Settlement: the Background

How the Google Book Settlement affects European authors and rights-holders: 1

How the Google Book Settlement affects European authors and rights-holders: 2

***

10. The Book Rights Registry is charged with representing the interests of the rights-holders who are registered with them in connection with the Google Book Settlement. (It is envisaged that they may also represent them in arrangements made with companies other than Google, but at present this is only hypothetical.)

[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 6.2.(b)]

The Registry is not charged with representing the interests of those rights-holders who do not register with them because they are in ignorance of the existence of the Settlement. Under the terms of the Settlement, no one represents the interests of this class of copyright-holder.

11. The Board of the Book Rights Registry is to consist of an equal number of publishers and authors. The Agreement does not specify how the directors are to be appointed. However, it does state that the Registry will be set up by the plaintiffs, that is, the Authors Guild and the AAP. At the conference at Columbia Law School, Michael J. Boni, lead counsel for the Authors Guild in negotiating the Google Book Settlement, told a questioner from the floor that the author directors will be directly appointed by counsel for the Authors Guild and the Guild itself, and the publisher directors will be directly appointed by counsel for the AAP and the AAP. The Authors Guild and the AAP have no plans to appoint directors who are not members of their respective bodies. This was also the substance of the answer to a question on this point put by the UK Publishers Association to Debevoise and Plimpton, the lawyers representing the AAP.

[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html;
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B]

12. There is no provision for foreign publishers and authors to be represented on the Board of the Book Rights Registry. This was raised as a point of concern from the publishers’ side by Herman Spruijt, President of the International Publishers Association, who spoke at the Columbia conference.

[http://kernochancenter.org/Googlebookssettlementrecording.htm;
http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]

There are many reasons why this is troubling. US and foreign authors and publishers cannot be said to have identical interests in the management of the Registry and the proposed operation of the book service.

One point that suggests itself concerns compliance. Since the digitised book corpus will only be accessible for commercial purposes within the USA, foreign rights-holders who register will find it difficult to know whether their work is being used or excluded from use in accordance with the terms that they have stipulated. Moreover, they arguably have a greater interest in Google’s taking steps to maintain territorial security; and there is no doubt that if Google is really serious about confining access to users within the USA, determined measures will have to be taken. I shall have more to say later on about the risks this project presents for losing control of content.

It may be noted that under the rules of the Authors Guild, membership is specifically restricted to authors of works that have been published ‘by an established American publisher’. This is another strong argument that its members cannot be taken as representative of the entire settlement class covered by the provisions of the Settlement, since many of the foreign authors whose works have been digitized by Google have never been published in the USA.*

[See https://www.authorsguild.org/join/eligibility]

Post Scriptum

*This is a matter of some importance, since in order for the Settlement to be ratified by the court, the judge must be satisfied that the Authors Guild is an appropriate representative of the class of people affected by it. This point was made by Pamela Samuelson in a lecture at the University of North Carolina on 14 April 14 2009.

[see http://www.youtube.com/watch?v=P-9MjgAheHg]


Coming next: the Book Rights Registry database; more on so-called 'orphan works'; procedures for resolving disputes