Friday, July 31, 2009

NZSA tells writers not to ignore Google Settlement

The New Zealand Society of Authors (PEN NZ Inc.) is concerned that the publishing industry here seems to be ignoring the Google Book Settlement as if it doesn't matter to us. We believe that's because there seems to have been an assumption that it is only relevant to books published in the US.
Having been alerted to it by Rick Shera, an ICT/IP partner at Lowndes Jordan, we have become increasingly concerned about this controversial deal and are calling our authors to make sure they do not just ignore what will be a revolution in the way that books are made available.

Ironically it is the very useful international reciprocity afforded by one of the oldest copyright treaties, the 1886 Berne Convention, that extends the settlement to non-US authors and publishers. As a signatory to the Berne Convention, the US is required to afford rightsholders from other Berne Convention countries the same copyright protections that it affords its own. Since New Zealand is also a signatory to the Convention, the settlement is therefore also applicable to New Zealand authors and publishers. The important thing to be aware of is that the settlement applies to New Zealand authors and publishers not because they have published in the US but simply because they have published a book to which the settlement applies, ANYWHERE (including solely in New Zealand).

Unless New Zealand authors or publishers formally opt out of the settlement, or formally opt in but request Google not to digitize and/or display their books, Google will have the non-exclusive right to digitize any of their books that were published anywhere before 5 January 2009, whether it has digitized them already or not. Google will then be entitled to display snippets or substantial previews of the books via its Google book search site.
If your book is still generally available for purchase in the US, then Google will only be able to display those excerpts with the consent of the author and publisher. (If the publisher wishes to allow Google to display excerpts, it must notify the author, who then has 30 days to agree or not). However, if your book is not generally available for sale in the US, then it is considered out of print and Google can display excerpts without needing any consent. Those excerpts are far more extensive than would be allowed under New Zealand law.

It seems to us that the rightsholder has 4 options:

1. Negotiate a separate deal with Google under its partner program. For those that already have, the Partner Program agreement will take precedence although it may or may not cover all the rights that Google gets under the settlement agreement.

2. Opt out by formally notifying Google. Rightsholders can also request that Google does not digitize their books, but Google is under no obligation to agree to that request. The rightsholder then has the right to sue Google. The deadline for opting out has been extended to 4 September 2009.
3. Opt in. If they opt in and lodge a claim in respect of a book prior to 5 January 2010, rightsholders will receive a share of the $45 million that Google has put aside to pay rightsholders (the exact amount will depend on how many people claim but will be between US$60 and US$300). You will also receive 63% of any revenue received by Google (e.g. from advertising around your book search result or if it is made available on subscription to a library or other institution). Note however, that the Book Registry which oversees all this takes its cut first though.

4. Do nothing – in which case you will be bound by the settlement in the US anyway and will lose the right to sue Google in the US even if Google does digitize your book and publish excerpts. You will also not receive any revenue for that use.

The New Zealand Society of Authors (PEN NZ Inc.) feels that to do nothing is the worst option available to our authors, and we recommend that they carefully consider the best course of action for them to take. We are also calling the New Zealand Government Officials to conduct an enquiry into this Settlement to ensure that our authors and our literature are protected.

Further details about the Settlement will be made available through the New Zealand Society of Authors (PEN NZ Inc.). We are grateful to Lowndes Jordan for its continuing assistance.

For further comment contact
Rick Shera, Lowndes Jordan, Barristers & Solicitors, 09 309 2500
Maggie Tarver, CEO, The New Zealand Society of Authors (PEN NZ Inc.) 09 379 4801

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