Action on Authors' Rights

The UK Government and the Google Book Settlement

Most professional authors with active careers who have looked into the detail of the Google Book Settlement have reacted with alarm and anxiety. Debate among them has focused chiefly on the best way to prevent Google Inc. from displaying or selling their books without authorization: whether it is better for authors to opt out and rely on copyright law, or register their books and invoke the provisions in the Settlement Agreement for having them removed.

The main UK authors’ organizations have hailed the Settlement as a positive development and advised opting in.

The Society of Authors has been markedly vague, much of the time, about the contents of the Settlement Agreement. More than once when it has ventured into specifics it has shown itself to be troublingly confused.

As for the Authors’ Licensing and Collecting Society (ALCS): it has been facing an uncertain future with the decline of the photocopier. It has welcomed the Google Book Settlement in terms that suggest that it sees a new licensing opportunity, administering UK authors’ payments from the planned Book Rights Registry.

Meanwhile, UK authors have been asking: where is the government in all this? Why isn’t it taking action to protect our rights?

The governments of France and Germany sent briefs to the court urging the rejection of the settlement. The government of India made diplomatic representations to the government of the United States.

In recent weeks, the sorry truth has been emerging: in Britain the New Labour government supports the Google Book Settlement, and has done from the start.

In an article in the Times in November 2008 David Lammy, Minister for Higher Education and Intellectual Property, hailed the Google Book Settlement as

[a deal that has] the potential to streamline the administration of copyright in the digital age … an evolution in the way copyright licensing for printed works is administered and a revolution in the freedom of access to harder-to-find works.

This op-ed by Mr Lammy was drawn to my attention by officials at the Intellectual Property Office (IPO) at a meeting on Monday 25 January. The meeting was set up by two intellectual property lawyers from London solicitors Olswang, Mark Devereux and Clive Gringras. They took along with them my agent Meg Davis and me: not as clients but in order that we might contribute to the discussion on the basis of our knowledge of and deep concern about the Google Book Settlement and our experience of how the book industry works.

The following points are among those that emerged at the meeting:

  • From the point of view of IPO and the government, the GBS model of digital publishing is one that is ‘in principle worth looking at’.
  • ‘Improving access to digital content’ is perceived as immensely important, and there is held to be a ‘logjam’ in delivering this, which the mechanism of the GBS dislodges. (I challenged the existence of such a logjam in the meeting.)
  • There is a perception that licensing works for use is currently ‘too complicated’.
  • On the whole idea of the GBS and the way it is set up to operate: when they looked into it they found ‘nothing so offensive about it that we would unhesitatingly condemn it’.

We were told that our group was far more hostile towards and critical of the GBS than anyone else they had talked to.

The Publishers’ Association (PA) and the ALCS have been lobbying for the GBS: no big surprises there. I didn’t get it clear whether the Society of Authors had made direct representations, but IPO were aware that the SoA broadly supports the GBS. IPO has not taken steps to consult widely among authors, but has been taking a kind of ‘straw poll’ of various authors who have passed its portals in recent months: we were told that all of them said that the GBS sounded like a good idea. (I suspect none of them had read the agreement.)

The big issue for IPO seemed to be the support for the settlement that had been expressed from the publishers’ side. This accords with a statement from Department for Business, Innovation & Skills (DBIS), reported by The Bookseller on 4 February. Confirming ‘that the government would not be lodging an objection to the settlement’, the spokesperson was reported as saying that ‘it was “right” that the Publishers Association “leads in this process”‘.

The government is all too plainly in need of assistance to get its collective head round the fact that copyrights belong to authors, not publishers; for the most part publishers only license them.

It also ought to be asking the PA some tough questions about the secret side-deal between Google and the big publishing corporations; but more on that in a later post.

To return to David Lammy’s op-ed: it makes alarming reading to any author who is at all well-informed about the GBS. It indicates plainly that the current Minister for Intellectual Property would like to jam a Google Book Settlement-style compulsory licensing system down our throats over here.

Provisions included in the Digital Economy Bill (Clause 42) would pave the way for this. They provide for the government to bring in regulations under a statutory instrument that would authorize ‘a licensing body’ – such as the ALCS – ‘to grant copyright licences … in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts’. In other words, this would be a default opt-in arrangement, just like the Google Book Settlement. It would be possible to opt out only ‘in respect of rights excluded by notice given by the copyright owner in accordance with the regulations’ (whatever those may be). The reference to ‘rights’ implies that, just as with the Google Book Settlement, an author who wished to stay in control of his or her copyrights would have to give details of every single publication he or she had ever licensed. (The same would apply, if course, to literary estates.)

These provisions would permit the Secretary of State for Business, Innovation and Skills (or a successor) to authorize the ALCS (or a similar company) to mass-license all British publications to Google (or another entity), except in those cases where the authors or other copyright-owners had gone to some trouble to prevent this.

And this is indeed the intended scheme, as a Tory spokesman has just confirmed in an email to another author: ‘The Bill would provide a legal framework for a potential book settlement in the UK, backed up by codes of practice.’ The Tories support the idea.

The GBS is in some trouble in the States. Following serious criticisms from the US Department of Justice, there are big questions over whether the court will approve it, and if it does, in what form.

But if authors in Britain don’t make their voices heard now, they may find that a similar scheme (or a worse one) has been imposed over here by government decree.

The ALCS isn’t going to oppose this. The Writers Guild of Great Britain has been actively calling for it. The Society of Authors has nothing to say about it on the public pages of its website. Given the Society’s support for the GBS, it can no longer be assumed that it will speak up for authors’ rights; which given its long and honourable history is very sad.

Action on Authors’ Rights is an ad hoc campaigning group set up by UK authors and agents who are deeply concerned about the Google Book Settlement, the Digital Economy Bill, and other current threats to the fundamental principles of copyright.

It aims to bring home to the UK government and opposition the well-founded concerns of UK authors about the Google Book Settlement and the Digital Economy Bill, and to have an input into the debate on digitization and copyright in Europe.

If you are a UK author or an author resident in the UK, and you agree with our manifesto – why not join our mailing list?

Whether you opted out of the GBS, or reluctantly stayed in, it would be great to have your input and involvement.

We also welcome UK literary agents.

In addition to the mailing list, there is also a Facebook group: email the organizer if you want to join.

February 11, 2010 - Posted by | Uncategorized | ,

8 Comments »

  1. What really worries me is that the writers’organisations and the government seem to have the impression that writers are on the whole happy with the Google Book Settlement. This is because, I think, writers’ organisations haven’t given good or full information. Now it’s feeding into the Digital Economy Bill.

    Comment by Meg Davis | February 12, 2010 | Reply

  2. From today’s Bookseller Magazine:
    SoA sends US court clarification on Google

    The Society of Authors has written a clarification note to the New York district court following its submission in support of the revised Google Settlement. Some authors had criticised the submission, which stated that while some members were making formal objections, “the great majority seem to take the view that overall it contains potentially significant benefits”.

    … Writers opposed to the settlement complained that the Society of Authors should have conducted a full consultation with its members.

    In a note on the SoA website, the authors’ body said it had now confirmed to the court that the sentences refer to “members who have been in contact with the society since the settlement was first announced in late 2008”. General-secretary Mark Le Fanu said the clarification letter had been sent in case the meaning in the first submission had been ambiguous.

    [More]

    Comment by Meg Davis | February 12, 2010 | Reply

  3. “to authorize the ALCS (or a similar company) to mass-license all British publications to Google (or another entity)”
    This proposal is a monopoly restriction ofthe terms of trade of millions of sole trader writers. And a restriction of other publishers such as Amazon Or Apple from entering the field. Dosnt the UK have a Trade practices Act?

    Comment by john | February 15, 2010 | Reply

  4. I am a self-publisher in the US. I am opposing the proposed Google Settlement as much as I can, given resources I have available. I have also written to members of Congress regarding two “orphan works” acts previously proposed in the US, all too similar to what the UK is proposing. Those two attempts failed; but there are rumblings of yet another attempt, yet again heavily supported not only by Google, but by companies such as Microsoft and Yahoo. An “orphan works” crisis is being whipped up to enable such companies to use millions of copyrighted works for their own financial gain. The general public supports such acts, because they see it as not having to pay for books any more–whether they actually need or will read those book, or not. Large publishers are also supporting the Google Settlement, at least, because it grants them very, very cheap reprint and e-book rights to millions of books they are not contractually entitled to use in this fashion.

    The UK government (and the US Government) need to be made aware that a book being available in libraries and used bookstores does not constitute a “logjam.” It can be read for enjoyment, edification, and research. It can be reprinted with proper permission obtained from the copyright holder and usually, also paying that copyright holder. Reprint publishers such as Dover do this all the time.

    The book just can’t be reprinted without permission (which is exactly what these search engine companies want to do). Hardly a “logjam.”

    Also, no author owning the proper rights needs Google or any other company to repring his or her book in pring-on-demand or e-book format. These technologies are technically and financially accessible to most. But, this is now being presented as a _requirement_.

    Nothing in US copyright law, or as far as I know in UK copyright law, forces the publisher or author to keep the work in print continuously—-however bad the financial deal he/she has to scramble for just to retain continuous control of his/her rights so that they are not seized by third parties. And however desirable it might be to instead publish an updated edition that will take time to research and rewrite, instead of constantly focusing on retaining rights to the old edition. (Because, of course, free or very cheap distribution of the old edition by other parties, will destroy the paying market for a similar but better new edition.)

    Yet, numerous parties are trying to make this the new norm—-“Keep it in print constantly or everyone else gets to seize it for their own gain.”

    This is an international issue. Rights to material in anthologies are often licensed from several countries that speak the same language, and there are also translations of material from different languages. An anthology of stories or essays published in the UK may well contain material witten by authors in the US, Australia, Canada, New Zealand, etc. Academic works not infrequently contain papers in several languages. Are we all going to have to register all our books and “inserts” in every other country?

    I have a suggestion for those who wish to oppose such “orphan works” acts. Which is, to approach societies of photographers and illustrators for support. In the US, they fought the previously proposed “orphan works” acts very hard. Many books are illustrated, and the rights to illustrations are very commonly held by parties other than the author or publisher. For some books, such as art books and coffee-table books, rights are often licensed for one-time use from numerous sources.

    Even if the author and publisher can be declared unlocatable—-though all such movements, from the previously proposed US “orphan works” acts to the Google grab, have required very little effort at locating copyright holders-—that does not mean the photographer or illustrator is also unlocatable. Furthermore, photographs and commercial illustrations are often not signed or attributed.

    Therefore, any such “orphan works” movement that covers loose illustrations (by which I mean, not in a book or periodical with a title and publication data), is inevitably going to violate international copyright law: The artist holding the copyright could be a citizen of any country. Futhermore, registering numerous lifetime publications of what the Google Settlement calls “inserts” is very burdensome to prolific writers, but photographers and illustrators have it far worse. They not only have to deal with many more images, the images often are untitled and can only be described in ways that also apply to numerous other images created by other people.

    Again, this is an international issue. (And now I’m wondering if the Canadian and Australian governments are not opposing the Google Settlement because they are contemplating similar so-called “orphan works” acts.) In terms of copyright, the entire world is becoming one of those neighborhoods where you are afraid to park your car because someone who sees you are not in it at the moment will steal it or vandalize it.

    Comment by Frances Grimble | February 15, 2010 | Reply

  5. I would not be surprised if Google has a hand in this UK registry scheme. They’re certainly trying to buy off the French government.

    By the way, in the UK can you get anywhere by sending mail against this scheme to your Parlimentary representatives?

    Comment by Frances Grimble | February 15, 2010 | Reply

  6. My last post was not very clear. What I meant is: I think that as well as support of this bill from publishers, you will find that Google has, as with the French, done something like offer the UK government money to scan rare works or some similar cause they find hard to otherwise afford.

    Comment by Frances Grimble | February 15, 2010 | Reply

  7. There is a lot of grass roots opposition to the proposed settlement, in the U.S.A. However, the mainstream media, even major publishing magazines, are either clueless or reporting dishonestly. As to the lawsuit itself, there is considerable belief among legal experts and others that the entire lawsuit was a scam and a sham—a collusive effort between Google and the so-called “Authors’ Guild” to shaft authors for the benefit of Google, and millions of dollars to the directors of the “Authors’ Guild.” (The Authors’ Guild stands to receive around $40 Million USD from Google if the settlement goes through. Not a penny of that would go to any individual author.

    As to any support from the British Govt., it is hard to grasp whether the appropriate parties have been “bought off” by Google. Certainly Google has enough funds to do so.

    Comment by Jan R. | February 16, 2010 | Reply

  8. […] warning: she's not in favour of those Do No Evil lads' approach to the Digital Future) now has a blog and a mailing list Posted by Gwyneth at 02:29 | Comments (0) | Trackbacks (0) Trackbacks […]

    Pingback by Digital Future - Gwyneth's personal blog | February 16, 2010 | Reply


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