THAT GOOGLE QUESTION
Diana Murray, Publishing Manager at Scholastic New Zealand has written to her authors and illustrators as follows:
As many of you will be aware, there has been a lot of discussion recently about the Google Book Settlement. This is where a group of publishers and authors sued Google for scanning books and creating a database that displayed short excerpts without the permission of the copyright holders. The settlement applies to books published before 5 January 2009. Unless rights have reverted back to the author, it is up to the publisher to decide on the course of action on behalf of its authors and illustrators.
Opting in to the settlement means that Google can continue to non-exclusively digitise content and the share of the settlement will be paid to the publishers/authors. Opting out of the settlement means that the the terms of the settlement agreement will not apply to that publisher/author, and that publisher/author retains all rights to bring legal action against Google themselves. Doing nothing means that you are considered to be opting in.
Scholastic has made the company-wide decision to opt in to the settlement. We believe that opting in gives us greater ability to remove or restrict access and/or usage on our titles, it facilitates greater awareness of, and access to, our books, and it could potentially generate some revenue which will, of course, be passed on to our authors. No further action is required from Scholastic until early next year.
If you would like to read more about the Google Book Settlement the Digital Publishing pages on the NZ Society of Authors website has good information and links to articles.
Opting in to the settlement means that Google can continue to non-exclusively digitise content and the share of the settlement will be paid to the publishers/authors. Opting out of the settlement means that the the terms of the settlement agreement will not apply to that publisher/author, and that publisher/author retains all rights to bring legal action against Google themselves. Doing nothing means that you are considered to be opting in.
Scholastic has made the company-wide decision to opt in to the settlement. We believe that opting in gives us greater ability to remove or restrict access and/or usage on our titles, it facilitates greater awareness of, and access to, our books, and it could potentially generate some revenue which will, of course, be passed on to our authors. No further action is required from Scholastic until early next year.
If you would like to read more about the Google Book Settlement the Digital Publishing pages on the NZ Society of Authors website has good information and links to articles.
3 comments:
Scholastic authors & illustrators need to check their book contracts. Authors & illustrators don't normally sell their copyright to publishers because our copyright ownership - by virtue of the fact that we are the creators of the sought after work - is the only power we've got. Under most book contracts, authors & illustrators retains copyright ownership, but the contract licenses the publisher to turn the copyrighted work into a physical book. If the book is out of print, all the rights licensed to the publisher normally revert to the author.
The contract may license the publisher to arrange subsidiary rights, but it seems to me unlikely that there would be anything in a Scholastic contract that would give the publisher the right to opt-in to the Google Book Settlement on behalf of the author and illustrator without their explicit consent. If the copyright remains with the author & illustrator, then the decision to opt in or opt out is theirs, & Scholastic has no right to make that decision on their behalf.
In any event, under the NZ Copyright Act, regardless of whether the author/illustrator has sold or licensed the copyright, the creator of the work retains what is known as "the author's moral right to the integrity of the work". This means that, if a publisher allows Google to mess with your work without your explicit consent, the publisher may be infringing your moral rights.
Lynley Hood
Re: "Unless rights have reverted Re: "unless rights have reverted back to the author, it is up to the publisher to decide on the course of action on behalf of its authors and illustrators."
I also believe that Scholastic NZ may have misunderstood the terms of the agreemnt if they believe the above statement to be correct. My understanding of the agreement, based on information provided by the American Authors' Guild and also the advice of my agent at Writers House, is that both writers and publishers must individually decide whether to opt in or opt out of the agreement and that if a writer does "opt in" then as the copyright holder her/his rights over their book under the agreemen, are not subservient to those of the publisher but of equal standing.
This is only my understanding, but I believe it would be worth authors checking with the NZSA or their own legal advisors, and/or going to the AAG website, to check this out further.
"Unless rights have reverted back to the author, it is up to the publisher to decide on the course of action on behalf of its authors and illustrators."
This statement is incorrect, and indicates a woeful ignorance of the settlement agreement on the part of Scholastic.
See Attachment A, Article 5.1: 'Permitted Uses. Both an Author (other than a work-for-hire Author) and the Publisher of an In-Print Book will be considered a Rightsholder for purposes of Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement. Except for Books that are works-for-hire, for an In-Print Book, both the Author and the Publisher of such Book must agree, in accordance with the following procedure, that Google may make one or more Display Uses of the Book: (a) The Publisher shall initially notify the Registry and the Author ofthe Book as to any and all Display Uses the Publisher wishes to authorize (e.g., whetheror not to allow Preview Use for a Book). The Author shall have the right, within thirty (30) days from the provision of such notice by the Publisher, to notify the Publisher andthe Registry that the Author does not authorize some or all of the requested Display Uses.The Display Uses requested by the Publisher shall commence after such thirty (30)-dayperiod absent notice from the Author that it does not authorize one or more of the requested Display Uses. If the Author objects to one or more Display Uses, then only the mutually authorized Display Uses shall commence.'
The situation regarding out of print books where the rights have not reverted to the author is a bit more complicated: see Section 6.1.c of Attachment A. But the author still retains rights, and the section states: 'If, at any time, an Author and the Publisher of a Book issue conflicting directions to the Registry regarding the uses authorized for such Out-of-Print Book, the more restrictive directions as to levels of access will control (i.e.,the Registry shall act in accordance with the request authorizing the fewest or most limited uses of the Out-of-Print Book).'
Section 3.5 of the Settlement Agreement says: '(i) Right to Remove. A Rightsholder of a Book may direct that his, her or its Book be Removed. If a Book has not yet been Digitized when Google receives a Removal request for that Book, Google will use reasonable efforts not to Digitize that Book, but, in any event, will comply with the request to Remove.'
In other words, the settlement agreement itself expressly guarantees the author rights that Scholastic's letter denies that they possess.
In addition, as Lynley says, a publisher has no right to stop an author opting out from the settlement and withdrawing her/his works from the Google corpus.
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