This is a Briefing Note on the US Google Book Settlement and whether to opt out (for which the deadline is 28th January)
1: What is the Settlement and how would it work?
2: Who does it affect?
3: Why opt out?
4: If I do not opt out
1: What is the Settlement and how would it work?
The Settlement came about as the negotiated way of resolving legal action under US law, brought by American authors and publishers against Google which had been digitising works without consent. It is to be reviewed by the US court on 18th February.
Giving online access in the USA to out-of-print works (and providing for rights holders to be paid for such use) is the primary objective. For full details, including a useful FAQ section, see www.googlebooksettlement.com.
The Settlement was revised last year following objections from various quarters. In essence (distilling a very complex document into a short summary) the Settlement covers the following:
1A: To administer the Settlement, Google is paying for the establishment of the Book Rights Registry in the USA, controlled by authors and publishers (including British representation).
1B: If, before 9th May 2009, Google digitised your work, you can register as a rights holder (at any time before 31st March 2011) and claim a retrospective digitising payment ($60-$300 depending on the number of claims). For guidance on the relatively straightforward process of finding out if your work has been digitised, click here.
1C: Google will not be able to make any use of work covered by the Settlement which is in copyright and in print, without the consent of the rights holders (generally you and your publisher). With consent, Google may make various uses in the USA, some of which will generate payments.
1D: Google will have the right (in the USA) to exploit copyright works which are out of print, subject to two provisos. First, where the use generates income, even where the rights holder is unknown, his/her share will be held by the Book Rights Registry in the USA for some years. Second, the rights holder may, at any time, register and give or refuse permission for Google to make use of the out-of-print work.
1E: Until March 2012, authors are free to instruct Google to remove all digital copies of their books.
2: Who does the Settlement affect?
The Settlement applies only to works (mainly English-language) published in the USA, the UK, Canada or Australia on or before 5th January 2009. It affects anyone who is a ‘rights holder’ of a work, including authors; the inheritors of an author’s estate; publishers; and (if their contribution means they are effectively co-authors) illustrators, translators and editors. If your publisher owns the copyright in your text (or illustrations), you are not a rights holder. The Settlement only covers books published on or before 5th January 2009.
3: Why opt out?
We find it hard to think of any practical reasons for opting out, because:
3A: The Settlement is subject to the approval of the US court. Substantial changes have already been made in response to concerns raised. If the US court considers the revised proposal to be fundamentally flawed, one assumes it will not be approved.
3B: One of the main objections (on commercial grounds and because it undermines a basic principle of copyright) is that Google should not have the right - in the USA - to exploit out-of-print works unless the rights holder specifically says no. A few of those who object have told us they favour opting out. Others who are opposed to the Settlement have nevertheless decided not to opt out because opting out would take away their right to raise objections, whereas by staying in the scheme, they can both object and exclude all their titles from any use by Google.
3C: Many (though by no means all) of the members who have spoken to us about this have said that, on balance, they feel that - given where the world is heading digitally - even if with reservations, they see merit in the Settlement which should establish a new way of identifying and paying rights holders.
If you want to opt out, the deadline for doing so is 28th January and you need to go to www.googlebookSettlement.com/agreement.html and click ‘opt out’ in the information bar along the top of the page.
If you do not opt out but want to raise objections, you must do so on or before 28th January. What you object to, and why, needs to be sent to the Court, with copies to the three Counsels involved. For full details, go to www.googlebooksettlement.com, click on FAQ at the top, and scroll to FAQ 24.
4: If I do not opt out?
It is by no means certain that the Settlement will be approved by the US Court. Therefore, assuming you do not want to opt out or raise objections (which have to be done by 28th January) in our view doing nothing is, in the short term, the best option.
If the Settlement is approved (unamended) by the US court, in addition to claiming for past digitization (see 1B), you will in due course want to register as rights holder of any of your works listed by Google as being commercially unavailable (at which time you and any other rights holders jointly can say yes/no to whether or not Google can make such out-of-print works available in the US). In our view, there is much less urgency over registering in-print books as Google has agreed that it will not make any use of such works without the explicit agreement of all the rights holders.
The Society will advise members further, on the details and the form-filling, if/when the Settlement is given US court approval.
Having considered the matter in some depth over the last 12 months, and taking into account the feedback we have received from members, the Society has made a brief submission to the court. It can be seen by clicking here.
We appreciate that the information can be daunting. Members can contact Kate Pool at the Society if they would like to talk it through.
If you are a member of the Society and have not received direct notification of this briefing, it is because we do not have your email address. If you would like to receive occasional emails from us when there are issues that we think you might wish to be alerted to, please let us know your email address.
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