Today marks the cut-off date for publishers and authors worldwide to opt in or out of the Google Book Settlement, effectively determining whether they will retain the rights over books the Internet giant plans to scan and digitise.
According to local attorney and digital publishing consultant Bertus Preller, the proposed Google Book Settlement “seeks to grant Google the valuable right to digitally exploit, forever, every non-public domain book ever published, virtually anywhere in the world”.
The settlement follows Google's announcement of its Book Search project in 2004, which would see the company scan and digitise millions of books worldwide to make them searchable on the Web. In 2005, the Authors Guild of America, as well as the Association of American Publishers (AAP), filed a class action suit against Google for copyright infringement. Google defended its actions as fair use.
Preller explains that, in response to the lawsuit, Google entered into a tentative interim settlement agreement, whereby it would pay more than $125 million (R945.5 million) in future royalties into a Books Rights Registry, to be distributed to the rights holders. In return, Google would obtain the right to digitise and make millions of books available online. Rights owners have until today to opt out of the proposed settlement, or opt in and submit an objection.
If the courts approve the settlement, Google will be able to scan and index millions of books without fear of being prosecuted for copyright infringement. The final fairness hearing in the US District court is scheduled for 7 October.
In a statement released after the settlement was reached last year, the AAP said: “The agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form, by significantly expanding online access to works through Google Book Search...”
Preller believes the impacts are more far-reaching. “The settlement would dramatically impact copyright owners around the world, SA included, as it would give Google a licence to use nearly every foreign book ever published, even books that have never been published in the US.”
According to Preller, US law means the settlement not only affects the parties who filed the original suit, but also binds non-parties who the courts certify will be affected in the same way.
“In the US, once approved, the settlement will, therefore, mean that unless an author or publisher has reserved their rights by formally opting out of the settlement, they will not be able to make any claim that Google is infringing upon the copyright in their books.”
Reading between the digital lines
Eloise Wessels, CEO of NB Publishers, one of several book publishing houses within the Media24 group, and publishing under the imprints of Tafelberg, Human & Rousseau, Kwela and Pharos, says the group is against the settlement.
“Media24 is opposed to the Google Settlement and has in this context submitted formal objections requesting the court that will handle the fairness hearing to reject the settlement, or to decline to certify the class with respect to foreign rights holders.”
She adds that the group believes the settlement, if proceeded with in its current form, will negatively impact the book business and fundamentally change the rights of publishers and authors under copyright.
“There are very many other reasons why Media24 is opposed to the settlement,” says Wessels. ”For example, Google's definition of 'commercially available' is limited to works being available through predominantly US sales channels and not necessarily through local sales channels, such as Kalahari. This will allow Google to obtain extensive exploitation rights over our books, which by the definition in the settlement, will not be 'commercially available'.”
NB is one of several book publishing houses within the Media24 group, which also includes Jonathan Ball Publishers, Lux Verbi-BM, Van Schaik Publishers, NVA and Stimela.
Wessels explains these book divisions all produce locally-developed texts, of which few (less than 1%) would be “commercially available” in the US, according to the Google definition.
“The settlement, therefore, poses a real risk for the book publishers and authors in the Media24 group and we are acting to limit that risk.”
If a publisher or author opts in and lodges a claim in respect of a book before 5 January 2010, it will receive a share of the $45 million (R343.5 million) that Google has put aside to pay rights holders. They will also receive 63% of any revenue received by Google, for example, from advertising, or if it is made available on subscription to a library, explains Preller.
Earlier this week, the deadline for filing objections to the settlement was extended to 8 September, because of issues with the court's electronic filing system, but the opt-out deadline remains unchanged.
The full statement can be viewed at Google Book Settlement.
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