Sunday, November 15, 2009

From Publishers Lunch - Saturday

New Google Settlement Drops Foreign-Language Works, and Gives Orphans a Fiduciary

Bowing to pressure from foreign governments and the Department of Justice, the revised Google Books Settlement agreement presented to the District Court shortly before midnight on Friday limits the scope of the scheme to works registered with the US Copyright Office and books published in the UK, Canada and Australia. As part of that change, the named plaintiffs have been expanded to include authors and publishers from those countries, and British, Australian and Canadian rightsholders will gain representation of the Book Rights Registry board. The plaintiffs indicate in a written FAQ that "after hearing feedback from foreign rightsholders, [they] decided to narrow the class to include countries with a common legal heritage and similar book industry practices."

Expressing a less expansive view than he did a year ago when announcing the first settlement agreement, Bertelsmann's Richard Sarnoff speaking for the AAP underscored tonight in a conference call that "the settlement is not about setting up the digital future of publishing; it's about not leaving old books behind." He also noted that "we feel we have addressed [the Department of Justice's] key concerns with the amended settlement we have presented to the judge."

"Ninety-five percent of foreign languages works are out" of the agreement, Authors Guild executive director Paul Aiken said, meaning "the lion's share of the potential unclaimed works are now out of the settlement."

Google Books engineering director Dan Clancy noted in that phone call "Google is still very excited about this agreement," though he writes on the company's blog "we're disappointed that we won't be able to provide access to as many books from as many countries through the settlement as a result of our modifications, but we look forward to continuing to work with rightsholders from around the world to fulfill our longstanding mission of increasing access to all the world's books." Clancy also promised to "reach out directly to those international rightsholders" and add their works "through direct relationships with them."

The new agreement also provides the now much smaller body of orphan works with an independent, court-approved fiduciary "who will represent rightsholders of unclaimed books, act to protect their interests, and license their works to third parties, to the extent permitted by law." Related changes address the initial concern that rightsholders were potentially unjustly enriched by profiting from monies earned by unclaimed "orphan" works. (Alterations to this part of the agreement are also aimed at the numerous challenges from state governments contending that the original agreement violated their unclaimed property laws.)

The Book Rights Registry is also now specifically required to actually "search for rightsholders who have not yet come forward." After five years, a portion of unclaimed revenues will be used to help locate those rightsholders--and no money will ever go to support the BRR's administrative functions or be disbursed to other rightsholders.

As promised before Congress, Google will let third parties sell access to all settlement works, including the orphans, though Google will host and serve those titles. Or at least they will do so in principle; it remains to be seen whether other retailers will find the final offer appealing. The basic revenue split going to rightsholders remains the same, and Google promises "retailers will keep the [unspecified] majority" of the remaining 37 percent share. Clancy said in the phone call retailers will get "at least a majority" and "it may be more than that."

While the retailer's share would be far lower than what Google plans to provide on new books sold under their Edition program, Clancy said "we still think that this allows them to complete their holdings and would still be attractive." Google's offer to potentially allow third parties to sell institutional subscriptions as well did not make it into the revised agreement. "It wasn't clear that that would be something that would end up working out," Clancy explained, adding "we're still open to talking to people."

But the wide-open menu of potential new revenue models to be negotiated at a later date has been narrowed in scope in the new agreement, limited to print-on-demand, file download, and consumer subscriptions.

The new settlement also accommodates rightsholders who want to make their books available for free--as some scholars filing with the court requested--"under Creative Commons or other licenses." Other revisions with the public in mind allow the Registry increase the number of free terminals at a given public library building, and on the privacy front Google promises to "not share any private information with the Registry without valid legal process."

Finally, as expected, the noxious the "most favored nation" clause that limited the Registry's licensing of unclaimed works has been removed, and the Registry "is free to license to other parties without ever extending the same terms to Google." The pricing algorithms have also been adjusted, taking into account some of the concerns over price controls.

Click here for an overview of the changes, or go here for a complete redlined version of the new agreement.


Fergus said...

A sad for New Zealand, to be left out of this settlement.

Keri Hulme said...

I'm delighted with it -what an opportunity for writers, publishers, and other interested parties here, (especially readers & libraries), to organise our own e-resource!

Fergus said...

But who is going to find their way to our little off-the-map private market?

Keri h said...

Anyone googling (heh heh) ANZ Books - or whatever.
Basically, the same people who would've been interested to check out ANZ titles/authors in the Google grabhoard. Not a lot - some. But now we can have the control, rather than GG claiming that works published outside of the USA were out-of-copyright
and their's, to do what they liked with- said...

I agree with Fergus - as a "minor" writer, with the potential for a larger market, I'm very disappointed - I had nothing to lose, and everything to gain.

Keri h said...

Actually, Maggie, it was very uncertain as to whether you'd've gained *anything.*

There were so many ill-defined aspects to the whole schmozzle...but worst, was the wholesale takeover of *authors'* copyrights.

I'm so very glad that Europe, Japan, and other areas dug their toes in. You will note also that several UK publishers are not party to the deal (Hatchette Livre for a kickoff.) said...

Hello Keri - nice to be chatting again (I miss our get togethers on Leafsalon) - well, okay "everything to gain" was a slight exaggeration, perhaps more like "something to gain"... and as Fergus says, who is going to take up the challenge of our small market? I liked the idea of being able to opt in or out and make a choice... this feels like being left out of the party - but I can see with 'The Bone People' why you would want to be more protective and in charge of your own destiny - more to lose than I have for sure. Yes, let's hope people do "google" NZ books, whether we're in, or out.

Keri Hulme said...

Kia ora Maggie - I miss the chats we had on 'Leaf Salon' too...I'm sure Graham will give you my e-address if you wanted it-

what I deeply objected to with GG was the fact ANZ copyright was effectively annihilated. A bit like inertia-selling: you had to opt out if you didnt want your books ingested into the GBS.( 'tbp' was OK -it has 2 USA publishers & is still in print there) but 6 other works were copied and would've been incorporated had I not objected.

There are small moves afoot to set up an ANZ portal
for e-availability of books that originate here. They may grow apace if ebooks take off. Cheers to Bookman Beattie for his wonderful site - and to you-