![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
First, an apology to anyone who read the comments to Saturday's instalment on the Google Book Settlement. I erroneously stated that the rights at issue were the electronic rights in a work. And so they ought to be, but the devisers of the Book Settlement Agreement have written a new contract for you (assuming you register with them). If your book is out of print but the rights have not reverted to you, revenues will be divided between you and the publisher regardless of whether your contract assigned the publisher a licence for the electronic rights. More on that below.
I also had not realised that under the US copyright system there is no right of typographical arrangement. Therefore if your book is out of print and the rights have reverted to you, the publisher does not retain an interest in the typography and design.
But I know now …
***
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
Google Book Settlement: the Proposed Book Rights Registry 1
Google Book Settlement: Some Clarifications
***
13. The Settlement specifies one of the main tasks of the Registry as the establishment and maintenance of a database of book rights information. This would include ownership of rights, and details of whether, and in which ways, the rights-holders wished their works in the corpus to be commercially exploited by Google.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 6.1.(b); http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 8.B]
This is a huge undertaking. At the conference in March held at Columbia Law School, Tracey Armstrong, President and CEO of the Copyright Clearance Center, the US collecting society that administers collective photocopying licences, commented on the amount and complexity of the data that would need to be assembled and organised. She pointed out that this would necessarily include information about ‘multiple rights holders per work, works within works, chapter and sub-chapter level rights, types of use or licence type,’ the latter depending on the choices made by the rights-holder[s]. The database would also have to track ‘ownership transfers, in bulk and individually, including inheritance’. All this, as she pointed out, ‘is a lot of ones and zeros’, a lot of data.
[http://kernochancenter.org/Googlebookssettlementrecording.htm; http://media.law.columbia.edu/kernochan/kernochangoogle090313tape3t.html]
And all this data would have to be continually kept up-to-date. It cannot be doubted that this would be an expensive business.
One may note, again, that while it has been estimated that the Registry would require between 10% and 20% of the revenues that are projected to flow from Google, this figure is not binding on the Registry’s directors [See § 9 above]. It might well turn out that the Registry engrossed a considerably higher percentage of the available income. Pamela Samuelson, lecturing on the Google Book Search Settlement at the University of North Carolina in April, memorably commented, ‘Most [collecting societies] … spend a lot of money on themselves’. At the Columbia conference the author Eugene Linden observed that he wanted to be sure that the proposed new system would benefit authors ‘and not just the intermediaries’.
[ http://www.youtube.com/watch?v=P-9MjgAheHg; see also http://www.slideshare.net/naypinya/reflections-on-the-google-book-search-settlement-by-pamela-samuelson, slide 16; http://kernochancenter.org/Googlebookssettlementrecording.htm; http://media.law.columbia.edu/kernochan/kernochangoogle090313tape3t.html]
14. Attachment A to the Settlement Agreement lays down what it terms Author-Publisher Procedures. Among other matters, it goes into detail about how the payments to be made by Google would be distributed.
[http://www.googlebooksettlement.com/intl/en/Attachment-A-Author-Publisher-Procedures.pdf]
Section 6.2.(c) deals with the case of out-of-print books where the rights have not reverted to the author. It states that for books with a publication date before 1987, the Registry will pay 65% of the revenues to the author and 35% to the publisher. In the case of books published during or after 1987, the split will be fifty-fifty.
No regard is paid to the question of who actually owns the electronic rights to the work. In the case of nearly all works published before 1987, and many that have appeared since, the electronic rights will not have been licensed to the publisher. In such cases the Settlement Agreement is effectively making a bid to rewrite existing contracts: assigning to publishers a right they did not previously possess, and revenues they otherwise would not receive.
[See also the comments by US literary agent Ashley Grayson: http://graysonagency.com/blog/publishing/the-google-settlement/]
15. Knowledgeable commentators on the publishing industry have predicted that if the Book Settlement is accepted by the court it will be followed by a large number of disputes over rights: and indeed, it doesn’t take much prescience to recognise this as an inevitable outcome.
Under the Settlement Agreement, disputes arising from it must be referred to binding arbitration, the arbitrators to be drawn from a pool of arbitrators to be chosen by Google Inc. and the Book Rights Registry. This applies to all disputes between authors and publishers about ownership of rights, as well as disputes between rights-holders and Google Inc. and/or the Book Rights Registry. However, an exception is made for disputes between publishers, who are allowed to use the court system to sort out their differences.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 9; especially 9.1.(a); 9.3.(a–c); 9.7]
This inequality of provision sharply points up the fact that authors are being corralled into a system that is likely to be less advantageous for them. Lynn Chu, a US attorney and literary agent, has this to say about the proposed system:
Access to your rights as an author at common law in federal court is very important, because U.S. courts have historically been very author-friendly, often overturning publisher contracts of adhesion to uphold author rights. … Expect arbitration to be publisher-centric, and focused on letter-of-the-contract analities, not author-centric. Arbitrators are never as open as federal courts to arguments of justice in equity to exploited authors.
[http://www.writersreps.com/feature.aspx?FeatureID=157]
By coincidence, as I was writing this section, the journalist Pam Martens published a powerful exposé of the corruption rife in the private arbitration system as it operates in the US: see http://www.alternet.org/workplace/141468/wall_street%27s_vast_private_judicial_system_exposed_as_fraud_/
Coming next: more on so-called 'orphan works'