Last updated on 1st March 2010
1: is the Settlement definitely going ahead?
2: who does it affect?
3: what do I need to do now?
4: remind me: what is the Settlement and how would it work?
5: did the Society make a submission to the Court?
1: Is the Settlement definitely going ahead?
The Settlement is subject to the approval of the US court, which reviewed it on 18th February. It will probably be some weeks before the judge’s decision is announced. The Settlement may be rejected by the US court. If not, it is likely to be subject to amendments and/or appeal, so even if not rejected, there are likely to be further delays. We will keep members informed of developments.
2: Who does the Settlement affect?
The Settlement applies only to works (mainly English-language) published in the USA, the UK, Canada or Australia before 6th 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. If, before 29th January this year you formally opted out, you cannot opt back in.
3: What do I need to do now?
Given the likelihood of further delay (or outright rejection by the court), in our view doing nothing is, in the short term, the best option.
If the Settlement is approved, in addition to claiming for past digitization (see 4B), you will in due course want to register as rights holder of any of your works listed by Google as being out of print (and with any other rights holders you can jointly say yes/no to whether Google may make your out-of-print works available in the US). In our view, there is much less urgency over registering in-print books because Google has agreed that it will not make any use of them 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.
If you have concerns in the meantime, feel free to contact the Society in the usual way.
4: What is the Settlement and how would it work?
The Settlement came about as the negotiated way of resolving legal action brought by US authors and publishers against Google, which had been digitising works in certain US libraries without the consent of authors or publishers. Giving online access in the USA to out-of-print works (and providing for rights holders to receive a share of any payment made for such use) is the primary objective. For full details, including a useful FAQ section, see www.googlebookSettlement.com.
If it is approved by the US court without amendment, in essence (distilling a very complex document into a short summary) it would cover the following:
4A: 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.
4B: As long as you did not opt out of the Settlement: 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 to $300 depending on the number of claims). For guidance on finding out if your work has been digitised, click here.
4C: Google will not be able to make any use of works covered by the Settlement which are in copyright and in print, without the consent of the rights holders (generally you and your publisher). If they have the consent of all the rights holders, Google may make certain specific uses in the USA, some of which will generate payments.
4D: Google will have the right 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 (and one of the Registry’s duties is to attempt to trace rights holders); 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.
4E: Until March 2012, authors are free to instruct Google to remove all digital copies of their books.
The main criticisms of the Settlement have been that:
(a) it has much wider implications than the original litigation, which focused on Google’s right to digitise works without consent under US law;
(b) Google will be able to give non-exclusive access to out of print books, subject to the requirements and restrictions of the Settlement, unless the author or publisher opts out;
(c) Google is likely to be dominant in the provision of online access to books.
On the plus side, the Settlement has been negotiated with Google by the Authors Guild and the Association of American Publishers. It is seen by them as a pragmatic way of providing greater access to out of print books in a regulated way through the new Book Rights Registry which is controlled by authors and publishers. Authors will be paid for past digitization and stand to receive further income via the Registry. While Google is permitted by the Settlement to undertake certain activities (non-exclusively), it does not secure control of authors’ rights generally. Given the amount of piracy on the internet there is thought to be merit in giving online access to books in a controlled way.
5: Did the Society make a submission to the Court?
Yes. Having considered the matter in some depth over the last 12 months, and taking into account all the feedback received from members in that time, the Society made a brief submission to the court. It can be seen by clicking here.