The Bookseller.com

2nd September 2010

Tim Godray is chief executive of the Booksellers Association in the UK.

Google and the US Settlement

28.04.09

Congratulations on your perceptive Leader, 17th April (“It is time to act over Google”).  We believe the proposed Settlement has the potential to change the future landscape of the book trade irredeemably. This might be an Agreement signed by US publishers, US authors and Google, but it will affect almost all of us in the UK book trade.

To date, Google have scanned in an estimated 7 million books and they are continuing to add more to their digital database.  The Settlement will give Google the right to sell content. Google is the world’s largest search engine. One of their applications enables consumers to browse inside books online directly from their own homes or workplaces. Moving from search to buy will be one just click away.  Furthermore, institutions in the US will be able obtain collective licenses to enable them to have easy access to millions of titles.

For titles scanned by them before 5th January 2009, our understanding is that subject to certain conditions Google will have the right to sell content by, for instance, Print-on-Demand, custom publishing (eg per page publishing to educational and professional markets), downloadable PDFs, summaries and extracts. This will include 1 million books in the public domain (Google has already entered into an agreement with Sony to make half a million of these titles available), 5 million ‘orphan works’ (where titles are out of print and in copyright, but the rights holders are not known) and Google can also sell the digital content of titles ‘commercially available through customary channels of trade’ if they have the rights holder’s permission (they have already scanned over 1 million titles in this category). 

Of particular concern to UK booksellers is that the proposed Settlement effectively gives Google control over these 5 million orphan works. Because potential competitors will be exceedingly reluctant to make use of orphan works (because they might well be sued for breach of copyright as they would outside the Settlement and therefore not protected), Google will seemingly enjoy exclusive access and, moreover, they will be able to set the price for downloading. A huge amount of money will be made in time from these orphan works and public domain titles. By their very nature, orphan works have not been properly represented in this action (for instance by the US Congress). Several US groups have objected to this aspect of the Settlement (e.g. Consumer Watchdog, The Internet Archive and the Institute for Information Law & Policy at New York Law School).

But as this is a US Agreement, why should we in the UK be bothered? Because the downloading of digital works is so much easier than buying and importing physical books (just as UK consumers already do so from anywhere in the world). So, other booksellers may find themselves locked out. In the longer term it will also be a question of “In the US today, in the UK tomorrow”, as Google is likely to try and introduce a similar agreement in Europe.
 
So if the Booksellers Association of the UK & Ireland is unhappy with the Settlement, can we lodge an objection to the US court about the effect of the provisional Settlement on our members? It seems not. We are not one of the ‘classes’ in the legal action. So here we have a case of three organizations in the US making decisions that will affect not only booksellers in the US, but in the UK and other parts of the world. 

Rights holders have until 5th May 2009 to opt out of the Settlement; until 5th May 2010 to claim compensation for titles already scanned; and until 5th April 2011 to order the removal of their titles. However, if the Settlement is approved by the US court in June, Google could start to roll out some of their new revenue generating services from as early as this July. 

It is difficult not to take the view that Google are being handed a monopoly and competitors will be placed at a considerable disadvantage. We appeal to all UK rights holders - namely UK publishers and authors. We urge you to seek a European solution to the orphan works issue by supporting the ARROW project (www.arrow-net.eu). If you want to see a balanced book trade, in which there are many channels to market, please consider very carefully your rights under the Google Settlement. We hope you will claim your titles and turn off all Display Uses pending a clearer vision of how the market for digital works will develop. The Settlement is incredibly complex - some 385 pages - and many areas require further clarification. 

You can always change your mind at a later date. But to do nothing could be disastrous.