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wolfinthewood[For the background to the Google Book Settlement, see my previous post.]
1. Under US class action law, the Settlement, if accepted as fair by the court, binds all members of the class on whose behalf it was brought. In this instance, the settlement class is defined as ‘all Persons that, as of the Notice Commencement Date, have a Copyright Interest in one or more Books or Inserts’.
The Notice Commencement Date has been set by the court as 5 January 2009.
For the Settlement to be accepted as fair, the court has to recognise the plaintiffs – the Authors' Guild and the AAP – as fully representative of the membership of the settlement class.
Professor Pamela Samuelson of the University of California, an authority on intellectual property law, has noted that at the start of the legal process, Google Inc. disputed the claim of the Authors' Guild to be representative of the class of all authors everywhere. This would seem quite reasonable: a) the Guild's membership is quite small and b) Professor Samuelson points out that most of the authors it represents do not write the kinds of scholarly works found in the university research libraries which have been supplying the books for Google to digitize. She believes that if the proposed Settlement, which, of course, confers major benefits on Google, had not been agreed, Google would 'almost certainly' have strongly resisted the move to have the Authors' Guild certificated by the court as representative of the class of authors.
[http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html;
http://www.slideshare.net/naypinya/reflections-on-the-google-book-search-settlement-by-pamela-samuelson]
In the publicity given to the Settlement in the press and on the web the phrase ‘US copyright interest’ has been widely used in describing the scope of the Settlement. This initially led many non-US authors and rights-holders, including the present writer, to assume that the Settlement would only affect their rights in works published in the United States. However, this is not the case.
If this settlement is allowed to go through it will affect the rights in all books published on or before 5 January 2009 in any country that is a signatory to the Berne Convention.
[See Berne Convention 5.1: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’]
2. Authors and rights-holders have the following choices in relation to the Settlement:
a) To opt out of the Settlement altogether, and retain the same rights over their books that they have always had. It should be noted that they may not be able to exercise those rights in relation to Google Inc. if the company infringes them and they themselves do not possess the financial resources required to take legal action to protect them.
Google has stated that if authors and publishers who opt out of the Settlement request the company not to digitise their work, or, if digitised, not to display any contents from it, it is its ‘current policy to voluntarily honor such requests’. However, the company has been known to change its stated policies from time to time, and this statement explicitly leaves open the possibility that it may do so in this case. Moreover, one author-publisher who has, in the past, opted out all her books from the Google Library Project and Book Search reported in November 2008 that in spite of this, two of her books had been digitised and put into the Google Book Search corpus.
The Publishers Association of the UK has warned its members that if a publisher opts out, ‘Google can use all of the publisher’s Books, as Google sees fit … unless and until the publisher brings a copyright infringement suit resulting in a victory or in a settlement with Google that provides otherwise.’
[http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704#q18a;
http://seekingalpha.com/user/293236/comment/299883;
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B]
b) To opt in to the Settlement and raise any objections or concerns they might have with the court. This would enable them to have their views taken into account, but would mean that they were bound by whatever the court decided.
c) Assuming the Settlement goes through, to register their work with a new institution, to be called the Book Rights Registry, which will then be interposed as an intermediary between the rights-holders and Google Inc., to process claims, transmit any payments, and arrange for the arbitration of any disputes over ownership of rights. More will be said about the Book Rights Registry shortly.
d) To do nothing: in which case, if the Settlement goes through, they will find themselves bound by its terms, no longer able (even in theory) to sue Google Inc. for any use it may make of their work, and unable to make any claims for payment from the company unless and until they register their work with the Book Rights Registry.
Note: the deadline for opting out of the Settlement, or opting in and objecting to it, is 4 September 2009. (It was originally 5 May, but was extended.)
The Final Fairness Hearing by the court will be on 7 October 2009.
[http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704#q0]
There is information on how to opt out, object, or register on the Google Book Settlement website.
[http://www.googlebooksettlement.com/intl/en/; see especially http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en]
Several opt-out letters already received by the court may be found on the web here (search under 'opt out', or scroll down): http://news.justia.com/cases/featured/new-york/nysdce/1:2005cv08136/273913/
There is also a sample opt out letter here: http://timetooptout.blogspot.com/2008/12/how-to-opt-out-of-lawsuitsettlement.html
3. Google Inc. has a number of plans for commercially exploiting the huge and still-growing corpus of digitised books it controls. Not surprisingly, given the company’s core business model, it plans to run advertising alongside search results and online page views. It also plans to sell subscriptions to the whole corpus to libraries. It plans to sell individual consumers the right to read books or parts of books online and print out pages. Other uses it envisages include selling e-books, in the form of downloadable PDF files, selling Print on Demand copies, and offering custom compilations of pages and portions of books as course materials for the education and training markets.
In order to avoid being legally challenged under foreign copyright laws, Google plans (for the present) to confine these activities to the US market.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 2.1.(a), 4]
The Settlement states that a share of the money raised by these commercial projects will be funnelled through the Book Rights Registry to those rights-holders who register their interests. Rights-holders who are not registered will receive nothing in payment for Google’s exploitation of their work.
A further point to note here is that Google will take its substantial (37%) slice off the top before any money flows to the Registry, and through them to the registered rights-holders. This reverses the usual principle of book publishing, in which the author is paid his or her agreed due and the publisher aims to make a profit out of the income that remains.
It should also be noted that the costs of running the Registry – which could be very high indeed – will be taken out of the share that goes to the rights-holders. See more on this below.
Further note: it cannot be thought an irrelevance that on 2 June 2009 Google announced that it had plans to facilitate the sale of e-books by publishers in its Partner Programme.
[http://online.wsj.com/article/SB124395511580877123.html]
4. The Settlement proposes to overturn a key principle of international copyright law, by requiring that authors will have to register their works with the new Book Rights Agency in order to retain and protect their rights in them.
It is hard to see how it could fail to place the US in breach of its obligations under the Berne Convention, which expressly states, ‘The enjoyment and the exercise of these rights shall not be subject to any formality’ [5.2.].
Also highly pertinent is the clause which states: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form’ [9.1.]. This clause is subject to certain limitations and exceptions, set out in the one that follows it: ‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’ [9.2]. The conditions specified here, only in ‘special cases’, non-conflict with ‘a normal exploitation’, and protection for the author’s ‘legitimate interest’, are often referred to as the ‘three-part’ or ‘three-step’ test. It is not in the least hard to argue that the Google Book Settlement, if put into operation, would interfere with authors’ ‘normal exploitation’ of their works and damage their ‘legitimate interests’. It certainly does not conform to the established definition of a ‘special case’, for which see the paragraph following.
The limitations and exceptions specified in the Berne Convention are restated in the TRIPS Agreement of 1994 [Article 13] and the WIPO Copyright Treaty of 1996 [Article 10]. In a case brought under the TRIPS agreement, a WTO Dispute Resolution Panel found in 2000 that an exception made as a ‘special case’ must be narrow in its scope, ‘in quantitative as well as a qualitative sense’. The Google Book Settlement is drawn so as to encompass an enormously large number of rights-holders and works.
[http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html; http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm;
http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html;
see also http://www.wto.org/english/tratop_E/dispu_e/cases_e/ds160_e.htm; http://educationload.com/?p=1133]
Authors and rights-holders are reliant on nation states and organisations of nations (such as the EU) to take action to protect the rights guaranteed under international treaties and trade agreements.
5. There has been much use of the term ‘orphan works’ in the publicity given to the Google Book Settlement in the press and on the web. Initially, this misled the present writer, and has certainly misled other authors also, into assuming that the Settlement could not and was not intended to affect the rights of authors who were still alive and could easily be contacted through the usual channels.
In the past, the term ‘orphan works’ has been used to describe out-of-print works whose rights-holders cannot be traced. As any anthologist knows, tracing rights-holders can be a time-consuming and demanding process; that said, there are probably far fewer works whose rights-holders are genuinely untraceable than is sometimes stated or implied.
It is plainly Google’s hope and expectation that if the Settlement goes through it will be relieved of its obligations under copyright law to make a diligent search for all the individual rights-holders whose work it proposes to exploit commercially and negotiate licensing deals with them, directly or through their agents, at a fair market price.
If this is allowed to happen, it will be a very serious diminution of the rights and benefits currently enjoyed by copyright holders. It would, of course, be of considerable economic advantage to Google. It would take a great deal of work to do a diligent search for all the rights-holders, as Google, it cannot be doubted, is keenly aware.
Rights-holders who remain in ignorance of the Settlement will have their works exploited and will have no control over the uses to which it is put, nor will they receive any income from it. In many, perhaps most cases, those works will not be ‘orphans’, in the sense of having no identifiable owners. It will simply be the case that not enough effort has been put into the task of tracing the rights-holders. It is likely that the majority of untraced rights-holders will live outside the USA.
I shall say something later about the plans that Google and its new-found allies in the AAP and the Authors Guild have for spending the money that is earned by the works that belong to rights-holders who do not put in a claim for them with the new Registry.
6. Those authors and rights-holders who are aware of the Settlement and make the choice to register, either in order to receive a share of any money earned by their works or to be able to control (to the extent allowed by the Settlement) the uses to which their works are put, will have to provide full details of all their works that were published in book form up till 5 January 2009. This will include all their works and excerpts from their works that have appeared in collections with more than one author. (The Settlement Agreement terms such works ‘inserts’.) They will also have to register all editions.
The work involved in registering their rights will be a burden on all authors and rights-holders. For prolific authors, especially those who have had a long career, and for publishers, except the very smallest, it seems likely to prove an enormous burden, imposed on them by Google, a commercial company, so that it will not have to spend its own money clearing copyrights in the traditional, and legal, manner.
At a conference in Columbia Law School on 13 March 2009, Lois S. Wasoff, a copyright and publishing lawyer who has previously held positions with Houghton Mifflin and Simon and Schuster, made the following comments on the administrative burden that the terms of the Settlement would place upon publishers:
The publishers that don’t feel there will be very substantial resource demands for the most part are the publishers who haven’t yet started looking at the actual implementation. The publishers who have been on the website, started thinking about claiming their books, started thinking about how they are going to deal with the different categories, have – in my experience in talking to a range of people – expressed a lot of concern about the amount of resources it is going to require to comply with this. … The demands will be enormous. … There is also a concern about ongoing maintenance of the data. This is not going to be static data; populating it once is one issue, maintaining it, changing it, is going to be a problem. … Maintaining a database of rights holder information, of information about copyrighted works, is a lot of work.
[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]
Coming next: the payments on offer to rights holders; and the Book Rights Registry