Tuesday, 21 April 2009

ACT NOW TO PROTECT YOUR RIGHTS! - important deadline: May 5

Published or sold a book in the United States before January 5 2009? Then you need to pay attention!

As you probably know, May 5 2009 is a very important deadline in the Google Books Settlement. This is the date by which rightsholders need to opt-out of the class action settlement. You don’t need to have been involved in the instigation of the class action to be affected; everyone who has published or sold a book in the United States at any time before January 5 2009 may be involved.

You are strongly urged to decide whether to opt-out or not. Do not to let this deadline pass without actively making a decision!

ALPSP has not adopted a position on the Google Books Settlement and individual rightsholders will obviously need to come to their own decision on whether the terms of the settlement are right for them.

I won’t go into the detail here, but here are a few things about the settlement that will hopefully help you determine whether you need to find out more:

It is about books (and some inserts to books) only. Some journals have been included in Google’s digitization program but these are not included in this settlement.

Google has apparently digitized around 7 million books. Of these about one million are out of copyright and are therefore not subject to the settlement. Around a further one million are still in-print and have been digitized with the agreement of publishers under the partner program; these are also not part of the settlement. The remaining 5 million books are in copyright but out-of-print and are the subject of this settlement (and, as I understand it, are any in copyright, out-of-print books not yet digitized).

As far as I can tell, Google has made no attempt to identify the rightsholders of the ~ 5 million books that are the subject of this settlement. In fact they may use the ‘opt-out’ procedure of the class action as justification for their actions if the rightsholders have not come forward. Google terms these ‘orphan works’ (i.e. works where the rightsholder cannot be identified) but as I say I believe that no due process to identify rightsholders has actually been carried out.

The settlement does not cover most of the images in the books which have been (or will be) blanked out.

Access to the digitized versions of these books will only be from the USA (those involved more closely appear confident that this can be achieved but it seems an enormously difficult task to me…)

You need to have the US copyright interest in the book (so if you have retained worldwide rights you are included).

If you choose to opt-out of the settlement you are retaining the right to sue Google for copyright infringement with respect to their digitizing activity of these books. However, it strikes me that even if you have no intention of suing Google you will be sending a message that you do not feel that the settlement is in your interests and be objecting to Google’s activities in this area.

If you choose to opt-out of the settlement you will not benefit from the payments from Google for the digitization of these works nor from any income generated in the future by the books included in the service. In addition you will not be able to formally comment on the terms of the settlement.

The Publishers Licensing Society have provided some additional information and, in case you've not seen it, a copy of the legal notice summary and full notice.

More information:
The settlement - http://www.googlebooksettlement.com/
FAQs - http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en
To opt out - http://www.googlebooksettlement.com/r/enter_opt_out

You can also email the Settlement Administrator at booksettlement_en@rustconsulting.com.

Please note that ALPSP is unable to give legal advice regarding this settlement. If you are in any doubt you should consult a lawyer.

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