Tuesday, August 18, 2009

Noted NZ biographer Lynley Hood has her say on Google.
Thanks to the NZ Society of Authors for forwarding this to me.

Dr Lynley Hood (author) - Tuesday, 18 August 2009, 11:11 am

For hundreds of New Zealand authors the alarming truth is just beginning to sink in: Google has stolen our intellectual property (and in doing so has stolen our most valuable possession and our livelihood).
Since 2004, through agreements with major universities and libraries around the world, Google has scanned millions of books, including many in-copyright books by international authors. For writers, it’s not so much the scanning that’s the problem, it’s the fact that those millions of books have been scanned in their entirety without the knowledge or consent of the copyright holders.
It is supremely ironic that among the hundreds of New Zealand titles illegally scanned by Google are Unbridled Power by President of the New Zealand Law Commission Rt Hon Sir Geoffrey Palmer SC, and Media Law by Sir Geoffrey Palmer, Law Commissioner Prof John Burrows QC and barrister Julian Miles QC. And it is profoundly distressing to find that hundreds of in-print, in-copyright books by our national treasures have suffered the same fate. A brief excursion into Google’s database of books digitised without authorisation on or before May 5, 2009 reveals multiple titles by Janet Frame, Hone Tuwhare, Sir Edmund Hillary, Witi Ihimaera, Michael King, James K Baxter, Keri Hulme, Maurice Gee, Sylvia Ashton-Warner, Charles Brasch, Marilyn Duckworth, Maurice Shadbolt, Margaret Mahy, Allen Curnow, Fiona Kidman, Bill Manhire - the list goes on.
In 2005 the US Authors Guild and a coalition of publishers filed a class-action lawsuit against Google for copyright infringement. Google argued fair use. In October 2008 formal resolution was cut short when the parties announced they had reached an out-of-court settlement. This settlement is subject to a final approval hearing in a New York Federal Court on 7 October 2009. In the meantime all authors affected by the settlement are invited to opt-in or opt-out by 4 September 2009.

In theory, this settlement should not concern us. Under New Zealand copyright law, and under the Berne Convention for the Protection of Literary and Artistic Work (to which New Zealand and the US are signatories), copyrights for creative works are automatically in force upon their creation. As soon as a work is written or recorded, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. In New Zealand, copyright lasts for 50 years after the death of the author. This means that if anyone wants to use our published work during our lifetimes, or for 50 years after our deaths, they have to check with us, or with our literary executors, first.

The Intellectual Property Office of New Zealand website assures us that New Zealand’s participation in various international agreements on copyright means that when your original work is created in New Zealand, it is automatically protected here and under the copyright laws in countries that are party to those agreements.
But that’s not how Google sees it. The 385-page settlement has been summarised in a FAQ sheet on the Google Settlement website (http://books.google.com/booksrightsholders/). FAQs of special interest to New Zealand writers include the following:
9. I am not a United States citizen, or I live outside of the United States. Am I included in this Settlement?
Yes, most likely you are. If you are a citizen of another country or live in another country, you are likely to own a U.S. copyright interest if:
Your Book was published in the United States;
Your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention; or
Your country had copyright relations with the United States at the time of the Book’s publication.
You should assume that you own a U.S. copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States.

At this point we need to remind ourselves that this is a settlement between private parties in the US, yet to be ratified by a court. Nonetheless, according to Google, the settlement includes authors who are not parties to the agreement, and who do not live in, and have never published in, the US.
All of which raises the question:
17. What happens if I do nothing?
If you own a U.S. copyright interest in a Book or an Insert, you need not do anything at this time to remain in the Settlement. If you complete the Claim Form, you will receive the benefits of the Settlement if approved by the Court, and your claims for copyright infringement against Google and the Participating Libraries will be released and will be dismissed by the Court. If you remain in the class, you will be bound by any judgment or determination of the Court in connection with the Settlement, whether favorable or unfavorable.

Thus Google has unilaterally included all the authors of all the books published in Berne Convention countries in its settlement. According to Google, if we don’t opt out, we are in, whether we like it or not. This is a blatant breach of the Berne Convention. Under the Convention, the copyright on any book belongs to, and remains with, the author. If Google or anyone else wishes to use that copyright it must negotiate with the copyright holder first.
All of which raises another question:
21. What happens to the books of authors and publishers who opt out of the settlement?
If an author or publisher opts out of the Settlement, the terms of the Settlement will not apply to this author or publisher. This means that the author or publisher is retaining all rights to bring a legal action against Google, for digitizing and displaying the author’s or publisher’s books and Inserts, and against the Participating Libraries, if desired. It also means that the Settlement neither authorizes Google to make certain uses of these books and Inserts nor does it prohibit Google from doing so.

In other words, if we opt out of the settlement, Google reserves the right to digitise our books and do whatever it likes with them (and we won’t be compensated for breach of copyright as a result).
Do the terms of this settlement get up your nose? Do you want to object? Then consider this:
23. What is an objection?
To object to the Settlement is to submit a statement that you disagree with some aspect of it. Only Settlement Class members may object, meaning a person cannot both opt out and object at the same time. The Court considers Settlement Class members’ objections prior to deciding whether to approve the Settlement.
So if you want to point out to the Court that requiring New Zealand authors to opt-in or opt-out of the settlement breaches national and international law, you have to opt-in first. How exquisitely Kafkaesque. Maybe we should ask that question again:
25. Can I both opt out and object?
No, you cannot both object and opt out. Only Settlement Class members may object to the Settlement, and people who have opted out are no longer Settlement Class members.
Got the message? No? Then let’s ask one more time:
26. What is the difference between objecting to the Settlement and opting out of the Settlement?
You may object to the Settlement if you remain in the Settlement but disagree with some aspect of the Settlement. An objection allows your views to be heard in Court. In contrast, opting out means that you are no longer part of the Settlement and that you do not want to be subject to the Settlement’s terms and conditions. Once you opt out, you lose any right to object to the Settlement, because the Settlement will no longer affect you.
So there you have it. If you opt out, anything Google does with your work will no longer affect you. In other words, if you don’t opt-in, Google will not only consider your books to be out of print and out of copyright, it will consider you, the author, to be dead.

Well, so much for New Zealand authors, what about New Zealand readers? If this settlement enables all the world’s readers to read all the world’s books on their own hand-held devices, won’t that be a good thing? Maybe so, but that’s not what the settlement says:
37. Are there any benefits for the general public?
Yes. If the Settlement is approved, United States users will be able to search, preview and buy millions of Out-of-Print books that cannot be found in most bookstores and libraries. In addition, each public library building will have a terminal at which users can search for, read and, if the library is able, print out pages from Books in the Google database.
This FAQ tells us that the benefits of ready access (at a price) to the books which Google chooses to classify as Out-of-Print will be available only to United States users.
New Zealand authors are invited to opt-in or opt-out of the Google Book Settlement by 4 September (that’s barely two weeks away!), but for the New Zealand government there are far more fundamental issues at stake that require urgent and decisive action.

If New Zealand’s laws and international treaties are not to be over-ridden by the arbitrary and oppressive conduct of private interests beyond our shores, the government must do everything in its power to ensure that the intellectual property of New Zealanders cannot be used by Google or anyone else without the explicit consent of the copyright holders.
18 August 2009


Keri Hulme said...

Lynley has done a wonderful job of clarifying the terms of the Great Google Grab, and I personally thank her for that.
I ill be opting out of the Settlement, but my chances of being able to bring an action are, realistically, zilch. There are USA regulatory bodies looking into the Settlement, and their Authors' Guild is maintaining a defiant anti- position. What is needed is what Lynley has suggested - widespread governmental action (the European union has apparently started along this track.]

Fergus Barrowman said...

I honestly don't think New Zealand writers and publishers have a great deal to be afraid of. Having a book scanned for Google Book Search raises its global profile enormously, and the terms allow one to dictate how much of the text is visible to the searcher who finds it. The book's copyright status is unaffected. I would have thought that any copyright owner or licensee who didn't already have an agreement with Google would be happy to be included.

Despite what you say, Keri, the US Authors' Guild seems to be the opposite of defiantly anti: http://www.authorsguild.org/

There are some broader dangers flowing from this agreement, as argued by Lawrence Lessig, Anthony Grafton, a group from the University of California, and others. While the rights granted to Google are, importantly, non-exclusive, their dominant position will be entrenched. And the deference shown to copyright holders might seriously limit the public good of bringing back into circulation books from the estimated 75% of all those ever published which are out of print but in copyright.

Nevertheless, at this stage of the game I'd rather be in than out.

Lynley Hood said...

- Fergus appears to have confused the Google Book Settlement (GBS) with the Google Partners Program (GPP). Many authors and publishers have signed up to the GPP. According to Google (& I only have their word on this) belonging to the GPP does not affect copyright. But the GBS is another matter. The GBS validates the past and future scanning of entire works without the knowledge and consent of the copyright holder. A clear breach of national & international copyright law.


Fergus said...

Hi Lynley,

I think I have the GBS and GPP straight. And I don't think the GBS affects copyright so much as averts a court decision on whether Google's scanning the full text of a book to make it searchable, but only limited excerpts visible, is a breach of US copyright or not.

Actually that question seems to me not much more than a technicality. Isn't Google's full-text scan the equivalent to a librarian putting a book on a library shelf, rather than a borrower taking it down and photocopying it?

Lynley Hood said...

Fergus - I suggested that you may have confused the GBS and the GPP because the only alternative explanation I could think of for your benign view of Google's conduct - that you do not understand our copyright law - seemed unlikely. I was wrong. Under the NZ Copyright Act 1994 there are two primary infringement relevant to this case:

30 Infringement by copying
The copying of a work is a restricted act in relation to every description of copyright work.
Compare: Copyright, Designs and Patents Act 1988, s 17(1) (UK)

31 Infringement by issue of copies to public
The issue of copies of a work to the public is a restricted act in relation to every description of copyright work.
Compare: Copyright, Designs and Patents Act 1988, s 18(1) (UK)


Samuel said...

I think almost all authors and publishers believe that Google violated copyright when they scanned in copyright books without permission. That's why the authors guild and major US publishers in the US sued Google. But authors and publishers then, with Google, crafted this settlement rather than pursuing it in the courts. Why?
In part the very real prospect of losing. There's precedent in US law for companies to index copyright work and provide, for example, thumbnails of photos without actually providing people access to the work itself and getting away with it. Google argued that's what it was doing with scanning/indexing/providing snippets.
So there was a lot to lose if the court case went against authors/publishers--no control over google's scanning and indexing--but also a lot to gain potentially. Fergus is right that having books searchable in Google demonstrably increases sales of the printed book. And sometimes we have to think ourselves lucky that internet innovators like Google, Amazon, Sony etc. actually think books matter enough to get involved, fight battles, play hardball. Imagine they, like the more ignorant of the techie types, had instead consigned books to the dustbin of history and weren't interested.
It's easy sitting in the South Seas to cry foul, rightly, against Google, but we are where we are in a rapidly shifting electronic and legal environment. Opting in to the settlement means you can control what Google shows or sells, including telling Google to show or sell nothing. Not opting in means that Google will keep scanning and indexing your material illegally. Chances of a second lawsuit? Negligable I would think.
Tough choices! Sam

Lynley Hood said...

Jeez Sam, you can already have your books searchable online through the Google Partners Program (GPP). So what's the problem? Oh, of course - under the GPP you can't let Google digitise all your books without the consent of the copyright holder. What a pity. But the Google Book Settlement (GBS) takes care of that. The GBS will put all your books online without the need for those tiresome, time-consuming negotiations with all those creative, lateral-thinking, bloody-minded and individualistic people who actually write the books you publish. For publishers, the GBS has set the merry ka-ching of cash registers ringing in their ears. Authors and publishers see this issue differently because they see copyright differently. To publishers, copyright is what they exploit to turn a buck. To authors copyright means much more. To authors, copyright is that precious thread that links the creator to the work. When your preschooler brings home a painting, you honour it not because it's a great work of art but because it's his; he made it. That's copyright. Copyright, when properly honoured and respected, protects the uniqueness of individual creative self-expression. That's what being a writer is all about.

Philip Temple said...

Sam believes we should consider ourselves lucky that outfits like Google, Amazon etc... think books matter. The chief motive they do so is maximising profit, regardless of where the creative copyright comes from, or the rights of those who created the original work. It's possible that both Sam and Fergus are so accustomed to their authors earning relatively little in the way of royalties that they think we should all be grateful for any crumbs that may or not fall from the tables of the Gods of the Universe in the USA. Damn any international copyright laws and conventions, damn the creators, damn the outrage that a US corporation can dictate what happens to the work of every writer in the world - just 'Smile! You're on Google!' At least some in the US, satirically, can see what's happening. Go to http://blogoscoped.com/archive/2009-08-11-n87.html

Samuel said...

Publishers head for cover! I can report that, like most publishers, I have not yet heard the 'merry ka-ching of cash registers' from google or netlibrary or any of the others--and don't expect to for a long, long time if ever. If that day comes, I'll look forward to passing a good proportion of the ka-ching to our great authors.
Sacrilege as it may be, I actually think authors and publishers have a shared interest in creating a healthy digital environment where books online produce income for creators. And authors and publishers had a shared interest in suing Google--rightly so. Now we all have to deal with a very complex legal settlement that could change at any moment. People will have legitimate differences of opinion on how to deal with that, but I'm not sure publishers and authors throwing grenades at each other is going to help much! Sam

Gillian Spraggs said...


"Not opting in means that Google will keep scanning and indexing your material illegally."

This and similar claims are being widely repeated by advocates for the settlement: but it is not what Google itself is saying. The online opt-out form includes a check-box besides the words "Submit to Google my request that Google not digitize the books identified above or, if Google has already digitized any or all of these books, that it not display material from the books, including snippets".

The settlement FAQ page additionally states: "Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests, if the books or Inserts are individually specified, are in copyright, and the author or publisher has a valid and unchallenged copyright interest in their books and Inserts."