How the Google Book Settlement affects European authors and rights-holders: 2

For earlier posts on this topic see:

Google Book Settlement: the Background

How the Google Book Settlement affects European authors and rights-holders: 1

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7. Under the Settlement Google Inc. will make a payment of $45 million into a fund to pay rights-holders whose work has been digitised prior to the opt-out deadline (now 4 September) and who register with the Book Rights Registry. It is guaranteeing minimum payments of $60 dollars for a book, $15 for an ‘insert’, and $5 for a ‘partial insert’(a term that is not really defined) . If enough authors register that more money is required, Google has promised to provide the necessary additional funds.

[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 2.1.(b)]

The sums that are promised are risible, far smaller than are normally payable for copyright licenses. This is not fair payment; it is a pacifier for the desperate and the resigned.

Moreover, it has been pointed out that the initial amount that Google has put on the table is wildly insufficient to pay all the rights-holders of all the in-copyright works it has digitised, even at the low figures specified in the Settlement.

At the conference at Columbia Law School mentioned earlier, Jule Sigall, formerly of the US Copyright Office and now senior copyright counsel with Microsoft, commented that at a rate of $60 a book, $45 million is sufficient to pay out on 750,000 claims. He noted that Google on their own report have scanned 7 million books, of which he estimated that 6 million are still in copyright. He suggested therefore that the Settlement is founded on the assumption that 88% of rights-holders whose work Google Inc. has digitised and now plans to exploit will never come forward to claim payment for the use of their work. It is no doubt possible to pick holes in his exact figures, but the main point is clear: Google is making a giant bet that most of the rights-holders affected by the Settlement will never find out that their rights are being exploited and put in a claim for payment.

[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]

It may reasonably be assumed that, among those rights-holders who remain in ignorance of the Settlement and the benefits that are promised from registering their works, a very large number, probably a majority, will be foreign authors and their heirs and assigns. One commentator has referred to the Settlement in terms of a ‘foreign land grab’ of copyrights.

[http://blog.librarylaw.com/librarylaw/2009/04/google-book-settlement-orphan-works-and-foreign-works.html;
see also http://fictioncircus.com/grimmelmann.php]

8. The lawyers who negotiated the deal on behalf of the Authors’ Guild will be paid by Google Inc., to the amount of $30 million.

[http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 19]

9. Under the Settlement Google Inc. has promised to pay an initial $34.5 million dollars to establish a Book Rights Registry. It also promises to pass on to this Registry 63% of the revenues it receives from commercially exploiting the corpus of digitized books. The figure of 63% is arrived at by allocating a nominal 70% to the rights-holders, then slicing off 10% of this figure to cover Google’s ‘operating costs’.

The continuing costs of running the Book Rights Registry are to be funded by taking a percentage of the revenues passed on by Google before what is left is divided among those rights-holders who have successfully registered a claim. An attachment to the Settlement Agreement estimates that the percentage withheld by the Registry for running costs will be between 10 and 20% of what it receives from Google. It should be noted that this is an estimate only, and does not bind the Registry’s directors.

[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 2.1.(a), (c);
http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 8.B.]

Coming next: more on the Book Rights Registry