Recent developments in the United States relating to the digitisation of books by Google could have a profound effect on the New Zealand public, authors and publishers.
Background
For some time Google has been scanning books and creating a digital library largely without the consent of the owners of the copyright in those books. Google made excerpts of the books available to the public. As a result, in 2005 copyright owners in the US united in a class action suit against Google for copyright infringement. A recently proposed settlement has arisen from that class action. The settlement would effectively give Google the right to digitise (scan) any in-copyright but out of print book of any Berne Convention country.
Why does this matter in NZ?
Under US law the settlement will apply to all members of the class (authors and publishers). NZ, like the US is a signatory to the Berne Convention. Under the Berne Convention works from an overseas member country are protected in NZ by extension of NZ law to those works and vice versa. This means that if an NZ rights holder falls within the class, the settlement will apply to them by virtue of the Berne Convention and US law.
It may seem unfair that the settlement made between a few people in the US will have an impact on NZ rights holders especially given creating a virtual library of books and making excerpts available to the public would likely constitute copyright infringement under NZ law. However, if approved by the US judiciary then NZ will be affected like every other Berne Convention country, so authors should take note of the developments and decide what they want to do.
The Settlement
Rights holders will have a number of options under the settlement, and these are outlined below:
1. Opt in: If a rights holder opts into the settlement and lodges a claim in respect of a book that was digitized without permission they will get a share of the US$45 million Google has set aside to pay rights holders. The rights holder would also receive 63 per cent of any revenue received by Google from advertising or subscriptions relating to the work if they agree to it being available.
2. Opt out.
3. Do nothing.
4. Enter into a separate agreement with Google under its partner program.
Implications
In the short term the settlement will bring about greater access to out of print books. Any NZ work that is not generally available in the US is considered an out of print book under the settlement. It is authors of these works, which probably make up the majority of NZ authors, who will be effectively forced to opt in. No matter which option they take, Google will end up scanning their books. Their works are not generally available in the US and so the settlement will create a new revenue source for them, but they will lose their right to sue in the future. Given the settlement creates an uncertain future for the publishing/book industry, this right could be valuable to keep.
If the work is generally available in the US and the rights holder opts in then they have the right to remove the book from the library. They can also negotiate with Google as to how much of the book is available to the public. If they opt out then they retain the right to sue but will receive no money from the settlement or the future advertising. If they do nothing then they are deemed to have opted in, but cannot negotiate with Google or receive any revenue.
Aside from the impact on rights holders, the key public interest concern is that the settlement will create a monopoly. Monopolies give rise to a number of issues including price-fixing, and consumer protection. Multiple vendors would leave consumers able to walk away from a bad deal whereas a single monopoly would leave them powerless. A further concern for NZ is the impact the settlement will have on our indigenous intellectual property. These concerns need to be balanced against the fact that the settlement would increase access to a large number of books that have been out of circulation for some time.
Given the public interest concerns with the settlement it remains uncertain whether it will go ahead in its current form. The settlement does solve the problem of making out of print books available to the public but by doing so creates an effective monopoly. It is this concern that has lead Amazon, Microsoft, Yahoo and others to voice their opposition in the last few days.
Whether the settlement goes ahead or not depends in part on which options rights holders take and whether they speak up against the Settlement. The deadline for opting out of the Settlement is 4 September, and the deadline for lodging an objection is 8 September. To do this, and for more information see http://www.googlebooksettlement.com.