Thank you for your email and inquiry to Hannah White (which I have copied below for your reference) concerning the proposed Google Book Settlement and a copy of your draft article outlining a variety of concerns arising from the proposed settlement. Your inquiry has been forward to me, as a member of the Intellectual Property Policy Group within the Ministry of Economic Development, for a response.
We have been monitoring developments concerning the proposed settlement. The US Judge presiding over the court case is not expected to consider the proposed settlement until October and it is far from certain what the final outcome of the court case will be. For example, I understand that the United States Department of Justice announced last month that it is investigating the proposed settlement, whilst the European Commission has announced they will also be investigating the proposed deal at the request of the German government. Where such investigations will or might lead is unknown at this point in time. Furthermore, it was reported in the media last week that the Judge has given The Media Exchange Company, Inc. an opportunity to file an objection to the proposed settlement.
At the heart of the matter concerns enforcement of copyright granted in the US (which are private property rights), the application of US law and, in particular, copyright and class action law, and it involves litigation between private parties based in the US. On this basis, it seems that there may be limited opportunity, if any, for the US government to be able to influence the final outcome, and even less opportunity for other parties, like the European Commission, overseas governments like our own, and non-US authors and publishers, to become involved in the process. If the proposed settlement is sanctioned by the US Judge in October, it may well be that concerns with the settlement can only be addressed through changes to US Federal law. In which case, possible changes to US Federal law will take time to develop and implement, and because it involves.
It does appear clear, however, that there is no action that can be taken by the Government, or in deed New Zealand copyright owners, under the Copyright Act 1994 to address the implications of the proposed settlement. New Zealand law does not apply in the US. Furthermore, there may be no action that can be taken under Berne Convention or any other International Agreement by the Government that might be directly attributed to the specific actions of the US government that would amount to any breach of these Agreements.
From this perspective, there appears to be no simple or easy answer to address the issues raised by the proposed settlement. The Ministry will, however, continue to monitor the developments overseas and especially in the US, and look for opportunities to address any outstanding issues following any sanctioning of the proposed settlement by the US courts
Intellectual Property Policy Group
Ministry of Economic Development