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Google Settlement agreed

16 November 2009

The New Google Settlement (see News Review 7 September) looks like a reasonable resolution of a thorny set of problems. Bowing to pressure from foreign governments and the US Department of Justice, the revised Settlement presented to the district Court in New York shortly before midnight on Friday limits the scope of the scheme to works registered with the US Copyright OfficeThe US copyright office has information on its website about how to register and what advantages there are in doing so. and books published in the UK, Canada and Australia.

The named plaintiffs have been expanded to include authors and publishers from those countries, and British, Australian and Canadian right-holders will gain representation on the Book Rights Registry board which will be set up. The plaintiffs say 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'.

Richard Sarnoff of Bertelsmann, speaking for the Association of American PublishersThe national trade association of the American book publishing industry; AAP has more than 300 members, including most of the major commercial publishers in the United States, as well as smaller and non-profit publishers, university presses and scholarly societies, said that: 'The settlement is not about setting up the digital future of publishing; it's about not leaving old books behind'.

The eventual form of the Settlement means that, as expressed by Paul Aiken, Executive Director of the Authors' Guild: '95% per cent of foreign languages works are out' of the agreement, meaning 'the lion's share of the potential unclaimed works are now out of the settlement'.

Google Books engineering director Dan Clancy noted in 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'.

The now much smaller body of orphan works will have an independent, court-approved fiduciary, who will represent rightsholders of unclaimed books and the Book Rights Registry is also now specifically required to actually 'search for rightsholders who have not yet come forward'.

Google will allow third parties to sell access to all Settlement works, although the terms for the retailer are still not clear. The potential new revenue models to be negotiated at a later date have 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 under Creative Commons or other licenses. Finally, as expected, the noxious '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'.

It remains to be seen what effect all this will have on authors' control of their work, but the final Settlement agreed appears to have dealt with many of the anxieties of the parties involved. Google can proceed but under tighter controls than were originally proposed.

Google blog