Google Books Settlement - amended

An amended Settlement Agreement

In the long running US battle over Google’s project to scan millions of library books, Google and the US publishers have agreed an amended settlement. The battle centred on publishers’ claims that the Google digitisation programme amounted to copyright infringement. Google had argued that it was “fair use” under US copyright law.

The original October 2008 settlement agreement had met with a great deal of criticism, largely because it was felt to be anti-competitive. The amended settlement has to get the final seal of approval from the US Court: a date of 18 February 2010 having been set for the Court’s decision.

If the amended settlement is approved by the US Court, Google will be allowed to use certain material in the US without the need to clear copyrights in the traditional manner. Google will have no right to use the material outside the US.

What does the settlement cover?

The settlement will apply to books and inserts to books which, at the beginning of 2009, had been registered with the US Copyright Office or published in the UK, Canada or Australia.

Google will have the right to use these works unless rights holders remove them from the project or opt out of the settlement. How Google can use them will depend on whether or not they have been made available for purchase in the US, UK, Canada or Australia, from anywhere in the world.

63% of the revenues obtained by Google from using the works is to be distributed to rights holders, with Google retaining the remaining 37%.

An independent not for profit organisation called the Books Rights Registry (the “BRR”) has been set up to oversee the distribution of payments.

The BRR will also maintain a rights information database, which will contain information on all works digitised by Google and their status for the purposes of the settlement (for example, removed from the project). Rights holders must “claim” their works in order to manage them for the purposes of the settlement. This involves searching the database of digitised books and claiming online.

Unclaimed works will be deemed to be orphan works. Google will be obliged to hold back revenues attributable to orphan works for up to 10 years, and the BRR and an entity called the Unclaimed Works Fiduciary will be allowed to use part of the revenues to look for rights holders of orphan works.

Comment

Google’s digitisation project continues apace, with the latest estimate being that 10 million works have now been scanned, the majority of which are out of print or orphan works.

The Amended Settlement Agreement removes some of the concerns over the original agreement. Indeed, in the UK, the Publishers’ Association have come out in favour of it, seemingly because it gives rights holders greater potential control over their participation in the project and the pricing for their works.

However, even if the Amended Settlement Agreement is approved by the US Court, an appeal seems very likely. There is thus unlikely to be complete certainty over Google’s position for some time to come.