With the recent 'settlement,' Google is poised to become the most powerful literary force in the world, with crucial implications for Canadians. Grace Westcott guides you through the legal minefield
GRACE WESTCOTT February 21, 2009It is impossible not to be impressed with the thing.Almost three years in the negotiating, and weighing in at 134 pages plus appendices, the Google Settlement would impress by size alone. But it is far more: its effect, assuming it receives court approval as scheduled in June, will be staggering. It promises to create a vast, searchable, online library for readers in the United States, easily dwarfing that of the Library of Congress, and including millions of out-of-print books from around the world. It has the potential to reconfigure radically the marketplace for books, catapulting a traditional industry into the digital beyond. It will effectively rewrite the copyright rule book between Google and just about every publisher and author on the planet. And its effect on libraries will be enormous.The position of power Google will occupy, as owner of a database comprising the combined holdings of the greatest U.S. research libraries, is simply breathtaking. And worrisome.The Google Settlement is the proposed resolution of two lawsuits: a class action filed against Google in Sept., 2005, by book authors and the American Authors Guild, and a separate action brought a month later by five major American publishers representing members of the Association of American Publishers. The dispute concerned the ambitious, audacious, Google Library Project, launched in 2004, and in which it has been scanning the collections of a dozen major American libraries, including Harvard University and the New York Public Library. As of last November, Google had digitized more than seven million books, roughly one million in the public domain, 2.5 million in copyright and in print, and 3.5 million in copyright but out of print. Users have had free access to the full text of public domain books in this "digital library" database through Google Book Search, and have been able to view a few relevant lines of text - "snippets" - of copyright-protected books. The lawsuits charged that doing this without permission violated the copyrights of book publishers and authors.Under the proposed settlement, announced Oct. 28, 2008, Google must pay $125-million U.S.: $45-million for cash settlements to authors and publishers of books Google has digitized without permission by May 5, 2009 (a minimum of $60 U.S. per book); $34.5-million to establish a Book Registry, that is, a rights-holder database to administer payments to, and inclusion or exclusion requests from, authors and publishers; and the balance for legal fees.Notice is now going out to the huge class of those affected: authors and publishers having a U.S. copyright interest in books published on or before Jan. 5, 2009. And this, due to the operation of international copyright conventions, is practically anyone who has written and published a book prior to that date that is still within the U.S. term of copyright protection, in any language, in almost any country, including Canada, whether or not the book was ever published in the U.S.The settlement is astonishing in its scope. If approved, it will permit Google, on a non-exclusive basis, to continue to digitize books from any source, and to maintain, expand and sell access to its enormous digital library in a number of specified ways. Google will, for example, be able to offer an online "institutional subscription" to U.S.-based academic, government and corporate institutions under which users can view, copy/paste, annotate and print pages. Individual consumers will be able to preview parts of a book free of charge, and purchase online access to an individual book for viewing, copy/pasting, and printing. Google will be permitted to sell advertising on online book pages, display snippets and bibliographic pages and may, eventually, make other revenue-generating uses.Rights-holders will be entitled to 63 per cent of revenues from these "display" uses; Google gets 37 per cent. Colleges and public libraries will be entitled to offer free public online access via limited numbers of terminals. Google is entitled to make and permit certain internal indexing and research uses of the database that do not affect rights-holders' commercial interests, such as the study of language use. And some libraries that made their collections available for scanning will receive digital copies of the database.Key to the settlement is the means it provides for authors and publishers to control if and how their in-copyright books are accessed online. It does this by establishing a not-for-profit Book Rights Registry, controlled by authors and publishers. The Registry will administer the rights-holder database, including how to opt in or out of Google uses.Continued from Page 1…Generally, the settlement provides that in-print copyright books will not be available for any of the above commercial display uses by Google unless the rights-holders actively opt in. For out-of print copyright books, Google is free to make such uses unless the rights-holders opt out.It's important to understand that "in print," for settlement purposes, may not mean what they think it means. It is, in fact, short-hand for "commercially available," meaning "offered for sale, new, through one or more then-current customary channels of trade in the United States." If the book is not for sale in the U.S., then it's not "in print" for Google's purposes, even if it's for sale elsewhere. Just think about that.Canadian authors and publishers of books published before Jan. 5, 2009, are almost certainly affected by the Google Settlement, and if that describes you, you have homework to do. To opt out or to claim any cash settlement, to participate in ongoing revenues and to take advantage of the right to manage Google's use of your books, you must create an account with the settlement administrator.A summary of the settlement can be found at www.authorsguild.org/advocacy/articles/settlement-resources.html, and at http://www.googlebooksettlement.com, where rights-holders can set up their accounts with the Google settlement administrator online. Details of upcoming seminars and online webinars held by Access Copyright to explain the settlement can be found at http://www.accesscopyright.ca.A few important deadlines loom. Most pressingly, if you want to opt out, you need to notify the settlement administrator by May 5. But frankly, it is hard to see the benefit in opting out. An individual rights-holder is unlikely to sue on his own; he forgoes any settlement amounts he's otherwise due, and, given the dominance the Google Settlement will likely have in the digital marketplace, it seems unwise to count oneself out.Jan. 5, 2010, is the deadline to claim the minimum $60 if your book was digitized before May 5, 2009. (There's no payment for digitizing done after that.) The deadline for a rights-holder who has not opted out but wants to request removal of books from the database is April 5, 2011.But again, you have to question the benefit of removing works from what is likely going to be the world's most comprehensive digital book supermarket. The settlement contemplates that, with Registry approval, Google may in time offer many other commercial revenue-sharing uses, including print-on-demand and consumer subscriptions. Can anyone interested in selling books in the digital future afford to take themselves off this database? Under the circumstances, rights-holders may be well advised to register their claims, collect their entitlements and seize the opportunity to manage the uses Google may make of their books. Doing nothing seems the worst option.Having said that, there is plenty here to give pause. The implications of the settlement get bigger the longer one thinks about it, and it is early days yet. One implication you won't find mentioned in U.S. summaries is the effect on libraries in Canada and the rest of the world. Unable to get access to a Google institutional subscription outside the U.S., Canada's university libraries will be unable to compete with the more comprehensive offerings in the U.S., or, for that matter, with the offerings of even the smallest of its public libraries, each of which is entitled under the settlement to free access on one terminal to the entire Google database.Because the settlement does not address Canadian rights in books, Canadian users don't get the benefits; outside the U.S., Google Book Search remains unchanged, unless the offering of such services is directly authorized by the rights-holders, as, for example, in the Google Partner Program.As for competition, no other digital book database is likely to come close to Google's, because no other database provider, short of another class- action settlement, will have a hope of obtaining anything like the right to digitize all books that the settlement gives Google.Google was a behemoth, and the Google Settlement, if approved, will make it the behemoth of the book. It sits astride the textual murmurings of the world. Will the restraints of the Book Registry be enough to keep it from abusing such a position, or will they be like the ropes of the Lilliputians around the sleeping Gulliver? This story is surely only in chapter one.Grace Westcott is a Toronto lawyer in private practice, vice-chair of the Canadian Copyright Institute and a big-time book-lover.