On The Google Book Settlement

For more than a year, The Writers’ Union of Canada has been working diligently to understand and clarify the terms of the proposed Google Settlement and to communicate all relevant information to its membership. In addition, we have made formal objections during the legal proceedings and worked for, and won, important changes to the Settlement agreement, which only affects books published up to and including January 5, 2009.

For the most part, the Settlement agreement affects books that are no longer commercially available. It will allow the display of an in-print book only if authorized by both author and publisher. In addition to books published and registered in the United States, the Settlement includes books published in Canada by Canadian publishers whether or not they are formally distributed in the United States or available in a separate American edition, as well as books published in the UK and Australia. A book is considered “commercially available” if it is offered for sale new by a seller anywhere in the world to a buyer in the United States, Canada, the UK or Australia.

Despite amendments to the Settlement addressing most of our concerns, the National Council of the Union is maintaining its formal statement of objections to the Settlement agreement. Our ongoing objections address negative implications for copyright, including free library terminals and the ongoing digitization of books likely to be “orphans” (i.e. works whose authors cannot be located). That said, there are also compelling reasons for not opting out of the Settlement.

We view the decision regarding whether or not to remain in or opt out of the Settlement as a matter for individuals to decide. To that end we have provided a summary of pros and cons to assist our members in making a reasoned choice.

A “fairness hearing” by the New York court is due to take place on February 18, 2010. If the Settlement agreement does not receive court approval, the litigating parties will be back in court, fighting over whether Google’s digitization of entire works in order to display “snippets” is infringement or, as Google contends, “fair use.”

In the interests of keeping the relevant information in open circulation and as a clarification of our position, we are pleased to provide the following key points to consider:

What are the benefits of opting out?

• Those who opt out preserve their right to sue Google and the libraries that have provided books to Google to digitize. The terms of the Settlement will not apply to a book if either you or your publisher opts out.

• To opt out is also to make a statement about Google’s monumental arrogance in digitizing entire books without seeking rightsholder permission.

The deadline for opting out is January 28, 2010. Writers who wish to take this course should contact the Settlement Administrator either by following instructions found at http://www.googlebooksettlement.com or sending written notice to the Settlement Administrator (c/o Rust Consulting, P.O. Box 9364, Minneapolis, MN 55440-9364) postmarked on or before January 28.

What are the benefits of not opting out and remaining in the Settlement?

• Authors who register as part of the Settlement will receive a digitization payment for books digitized by Google on or before May 5, 2009 and a possible inclusion payment later if the book is included in the institutional subscription database.

• A stream of revenues, likely to be modest for most rightsholders, may flow from commercial uses by Google.

• Authors who remain in the Settlement may remove their books completely (on a book-by-book basis) from all uses by Google if they do so on or before March 9, 2012. After that date, removal requests will be honoured only if a book has not already been digitized.

• Any edition of a book can be removed by a rightsholder from some or all display uses by Google at any time.

• Usage will be monitored and payments made to rightsholders through a Book Rights Registry. There may be benefits down the road to having a Book Rights Registry in the United States, which is intended to act as a collective society for writers and publishers.

Writers who do not wish to opt out need do nothing at this point. If the terms of the Settlement are approved, the deadline for claiming your books in order to be entitled to a cash payment for digitization has been extended to March 31, 2011. The deadline for removing books from the Google database has been extended to March 9, 2012 but remains April 5, 2011 for removal of libraries’ digital copies. Otherwise, there are no deadlines for signing up with the Book Rights Registry. For claim forms and information on registering with the Book Rights Registry, go to www.googlebooksettlement.com.

Please note:

The Google Settlement does not directly affect copyright in Canada. The protection of Canadian copyright law in our Canadian courts will continue, as always, to be available if an infringement takes place in Canada. Regardless of where they are published, books are protected by the copyright law of the particular country where an infringement occurs. It is for this reason that the lawsuit against Google took place in the United States, under American copyright law, and why the Settlement agreed to by The Authors Guild, the Association of American Publishers and Google is now being considered by a court in that country.

Under the Settlement, it is assumed that the publisher is entitled to receive all revenues for an in-print trade book and that the publisher will pay the author according to the author-publisher contract. If a book is out of print, a further assumption is that the author controls the e-rights and is entitled to all payments (unless the book is what American copyright law describes as a “work-for-hire”). In addition, it is assumed that copyright of in-print and out-of-print educational books is owned and controlled by the publisher.

There are procedures in the Settlement agreement to determine whether or not a book is out-of-print, as well as a mechanism to dispute any of the aforementioned assumptions. If rights have not reverted to the author, there will be separate payments to author and publisher for an out-of-print book.

However, it is important to understand that the publisher may have signed up – outside the Settlement – to be a Google “partner”. If the publisher is, in fact, a Google partner and if the author has licensed e-rights to that publisher, the Google “partnership agreement” between Google and the publisher that will apply to the book and take precedence over the Settlement agreement.

The Writers’ Union of Canada will continue to monitor the Google Settlement and to provide new information to writers as it becomes available.

National Council, January 15, 2010.

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