One of the big issues looming on the digital horizon is the role libraries will play with ebooks. A pre-emptive move earlier this year by the UK government has upset booksellers and shows that the industry here, too, needs to get involved in this debate.

So far, libraries’ digital activity has mostly been confined to research uses. The prevalence of the cumbersome PC as the main reading platform means the bread and butter of the book trade, fiction and general non-fiction, has barely been touched. But mobile reading devices and a surge in availability of popular ebooks are pushing libraries into the digital mainstream.

The few libraries experimenting today with ebook downloads typically have very thin collections. This is partly due to tight budgets but also stems from concerns by publishers and authors about how—indeed whether—libraries should lend digital editions of their books.

It’s the latter that has prompted the UK government to legislate so that patrons in libraries can download digital editions to their ebook readers without libraries infringing copyright. At the same time, it will issue an order under legislation “preventing libraries from charging for ebooks lending of any sort, including remotely.”

On the face of it, this looks like a big win for the reading public. Most people I speak to about ebooks get excited by the idea that they’ll be able to borrow them free from their libraries. And most people have a visceral sense that borrowing from a public library should be free to all. But this excitement is not shared as acutely by publishers, authors and booksellers.

Macmillan US CEO John Sargent put the industry problem succinctly when he said recently, “In the past, getting a book from libraries has had a tremendous amount of friction. You have to go to the library, maybe the book has been checked out and you have to come back another time … With ebooks, you sit on your couch in your living room and go to the library website, see if the library has it … You get the book, read it, return it and get another, all without paying a thing … How is that a good model for us?”

For much of the public, politicians, and librarians, this seems like a perfectly good model which accords with the common view that the digital world should operate the same way as print. But it is likely to be bad news for publishers, authors and booksellers. The former might lose sales because libraries can lend ebooks more efficiently (they need fewer websites than physical libraries) and they don’t wear out or get lost. And publishers, authors and booksellers all potentially suffer if the free option is as “frictionless” to get as their more expensive paid editions. And there might be less desire to “own” an electronic file than a real book.

Perversely, libraries are likely to suffer too from the UK government mandate to lend all ebooks free of charge. Most will not be able to afford a serious ebook lending programme without painful cuts to other services. If no other measures are taken, the result will be a crippled ebook service with a very limited selection. Ironically, booksellers concerned about competing with free loans should probably cheer the unintended consequence of this heavy-handed move.

But let’s not cheer too soon. Faced with this outcome, the government might tip the balance in libraries’ favour by forcing rightsholders to make big concessions, effectively subsidising libraries and setting up an even stronger competitor for booksellers. Its planned copyright changes to let libraries lend ebooks with or without publisher permission shows it’s not averse to forcing rightsholders’ hands.

So what is a reasonable role for libraries and how do we achieve this balance of interests? To avoid the heavy-handed legislative approach we’re seeing unfold in the UK, we need to talk directly to the library sector and other stakeholders in our own part of the world.

And we need to consider how the ebooks ecosystem will evolve.

If we look at the film industry as a comparison, there’s an initial cinematic release followed by release to rental and sell-through channels, then pay TV, then free-to-air TV. Through this measured roll-out, the industry manages to extract value at every price point, including free, and sells through many channels to reach as much of the market as possible. About 80% of the film industry’s income is earned after cinematic release.

Ebooks need a range of channels and price points too, to properly service the market and maximise the value of our creative assets. And with books it’s not just an economic equation: we have to consider social impacts.

So which channels will open up for ebooks? We’re in the early stages of developing a “full price” channel and still have a lot of work to do selling the value of digital books to consumers. And we can expect that libraries will offer some sort of free channel, whether selectively or open to all. Other (legal) free-to-consumer channels might emerge, perhaps through ISPs—and might have to develop to stem piracy.

I personally would like to see a vibrant rental channel for ebooks. And I’d like to see both libraries and booksellers participating, perhaps with release dates delayed just as DVDs today follow cinematic release. This would be an interesting “back to the future” scenario for booksellers. Before the public library movement, they had a thriving book rental market and in their heyday, there were more than 1000 “circulating libraries” in mid-nineteenth century Britain.

A paid rental option could bring much-needed money into libraries’ strained coffers, resulting in a better service to patrons who can pay and, with this improved funding, a better free service for those who can’t. For publishers and authors, it offers the prospect of fair compensation for readership through libraries.

While booksellers might be concerned that libraries are straying into commercial territory, it will be worse all around if they are backed into a corner by politicians and a public with high expectations, while not given the resources to deliver on these aspirations.

We’d then confront two equally grim scenarios: a high quality free service competing aggressively with booksellers and largely paid for by onerous terms thrust on publishers and authors by legislation. Or a crippled public library service struggling with dwindling patronage and increasing irrelevance.

These are tough issues with far-reaching impacts. Time to start talking and find a way through this.

Notable, of course, is the change relating to the territories from which the published works must come: it is now only the US, UK, Canada and Australia.

The document clarifies that rightsholders whose works were published in other territories such as New Zealand will no longer be class members (ie bound by the terms of the proposed settlement agreement) and, as a result, are now free to sue Google.

As an alternative, the court points rightsholders to this information page from Google where Google will keep jilted class members updated with alternatives, including the very useful Google Books Partner Program.

The court’s note, and Google’s page, refer to Google’s plans to extend this program to provide a service for publishers and authors that will be similar to the features offered under the class action — without the coercion.

The full text of the court’s summary follows:

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

The parties in Authors Guild, et al. v. Google Inc . announced a settlement of the litigation in October 2008 and sent out a Notice of that settlement (the “Original Settlement”). The parties have now amended the Original Settlement in response to discussions with the United States Department of Justice and objections to the Original Settlement (the “Amended Settlement”). The Amended Settlement Agreement (“ASA”), as well as the original Settlement Agreement and the original Notice, may be found at http://www.googlebooksettlement.com or obtained from the Settlement Administrator.

This Supplemental Notice is not designed to replace the original Notice, but rather, to supplement that Notice. This Supplemental Notice identifies:

1. The material amendments to the Original Settlement,
2. Your rights under the Amended Settlement, and
3. The date of the fairness hearing scheduled to determine whether the Amended Settlement should be granted final approval.

Summary of Amendments to the Original Settlement

1. Amended Settlement Class. The definition of Books has been narrowed. As a consequence, many class members under the Original Settlement are no longer class members under the Amended Settlement.

Rightsholders Who Are Included in the Amended Settlement Class

• For United States works, the definition of Books remains largely unchanged: United States works must have been published and registered with the United States Copyright Office by January 5, 2009 to be included in the Amended Settlement.
• Under the Amended Settlement, however, if the works are not United States works, they are only included in the Amended Settlement if they were published by January 5, 2009 and either were registered with the U.S. Copyright Office by that date or their place of publication was in Canada, the United Kingdom (“UK”) or Australia.

As a result of the narrowing of the definition of Books, the scope of Inserts has been narrowed as well.

Please note that you may be a member of the Amended Settlement Class even if you do not reside in the United States, Canada, the UK or Australia. If your work meets the criteria above, then you are a member of the Amended Settlement Class regardless of where you reside and regardless of where else your work may also have been published. (ASA Section 1.19)

A work will be considered to have a place of publication in Canada, the UK or Australia if its printed copy contains information indicating that the place of publication was in one of those three countries. Such information may include, for example, a statement that the book was “Published in [Canada or the UK or Australia],” or the location or address of the publisher in one of those three countries.

Rightsholders Who Are Not Included in the Amended Settlement Class

As a result of these amendments, if the only United States copyright interests you own are in works that were not either (a) published and registered with the United States Copyright Office by January 5, 2009 or (b) published in Canada, the UK or Australia by that date, you are not a member of the Amended Settlement Class, even if you were a member of the original Settlement Class.

If you are not a member of the Amended Settlement Class, you will not be eligible to participate in the Amended Settlement and you will not be bound by its terms. You retain all rights to sue Google for its digitization and use of your copyrighted material without your permission. If you wish to sue Google for such digitization and use, you must do so in a separate lawsuit. Your rights may be affected by laws limiting the time within which you may bring such a suit. If you are interested in bringing a lawsuit against Google, you should consult your own attorney.

If you were a class member under the Original Settlement, but are not a class member under the Amended Settlement, you should visithttp://books.google.com/books-partner-options in order to learn about Google’s current policies with respect to the removal of your works from its databases, as well as Google’s interest in making your works accessible in models similar to those in the Amended Settlement under similar terms.

2. Commercially Available. The Amended Settlement clarifies that a Book is Commercially Available if it is being offered for sale new by a seller anywhere in the world to a buyer in the United States, Canada, the UK or Australia. (ASA Section 1.31)

The Amended Settlement now provides that Google will not display any Book it classifies as not Commercially Available for at least 60 days after the date of that classification, or the Effective Date, whichever is later. The Amended Settlement also now provides that, if a Rightsholder asserts that a Book is Commercially Available, Google will not display the Book unless Google successfully challenges that assertion in a dispute. (ASA Sections 3.2(d)(i) and 3.3(a))

3. Representation of Canadian, UK and Australian Rightsholders on the Board of the Registry. The Amended Settlement provides that the Board of the Book Rights Registry (the “Registry”) will, at a minimum, have one author and publisher director each from Canada, the UK and Australia. (ASA Section 6.2(b)(ii))

4. Monitoring for Rightsholders Outside the United States. Because the services authorized by the Amended Settlement will be unavailable to users outside the United States, the Registry will, upon request, monitor Google’s use of Books and Inserts to ensure that they conform to the requirements of the Amended Settlement and to Rightsholders’ instructions, and will attempt to provide a means for such Rightsholders themselves to monitor and verify their claimed Books and Inserts. (ASA Section 6.1(f))

5. Dispute Resolution Optional For Rightsholders. The Amended Settlement now provides that Rightsholders may agree not to arbitrate disputes between or among them under the dispute resolution mechanism in the Amended Settlement. In addition, Rightsholders (but not Google) can elect to participate in any arbitration by teleconference or videoconference in order to save travel costs. (ASA Sections 9.1(a) and 9.3(a))

6. Independent Representation For Rightsholders of Unclaimed Books and Inserts. The Registry will include a fiduciary who will have the responsibility for representing the interests of Rightsholders with respect to the exploitation of unclaimed Books and Inserts. (ASA Section 6.2(b)(iii))

7. Unclaimed Books and Inserts and Unclaimed Funds. The Amended Settlement clarifies that, from its inception, the Registry will use settlement funds to attempt to locate Rightsholders. The Amended Settlement also now provides that funds owed to Rightsholders of unclaimed Books and Inserts (“Unclaimed Funds”) will not be used by the Registry for general operations or reserves and will not be distributed to claiming Rightsholders. The Amended Settlement makes the following changes to the Original Settlement: (a) after Unclaimed Funds are held for five years, the Registry, in collaboration with organizations in Canada, the UK and Australia, and in consultation with the fiduciary, may use up to 25% of the funds for the sole purpose of locating Rightsholders; and (b) remaining Unclaimed Funds will be held for the Rightsholders for at least 10 years, after which the Registry, subject to fiduciary approval as to timing, may apply to the Court for permission to distribute Unclaimed Funds to literacy-based charities in the United States, Canada, the UK and Australia, upon notice to Rightsholders, the attorneys general of all states in the United States and Fully Participating and Cooperating Libraries. (ASA Section 6.3)

8. Commitment to Improving Claiming Process and Website. The Amended Settlement provides that the Registry and Google (for as long as Google continues to provide operational support for the Registry) will maintain and improve the Settlement Website to facilitate the claiming of Books and Inserts. Google will also work to correct errors in the Books Database. (ASA Section 13.3)

9. Additional Revenue Models. The Amended Settlement now limits the potential new revenue models to the following three additional Revenue Models, which must be approved by the Registry:

1. Print-on demand (“POD”),
2. File download (formerly “PDF Download”), and
3. Consumer subscription.

The Amended Settlement limits POD, if approved, to Books that are not Commercially Available. In addition, the Amended Settlement specifies that the revenue split between Google and Rightsholders as to the additional Revenue Models will be the same as for the existing Revenue Models.

Finally, the Amended Settlement provides that Rightsholders of claimed works (and the fiduciary for unclaimed works) will be given timely advance notice before an additional Revenue Model is launched, with an opportunity to exclude works from that model. (ASA Section 4.7)

10. Agreeing to Different Revenue Splits for Commercially Available Books. For Commercially Available Books, the Amended Settlement provides that either Google or the Rightsholder will have the ability to request renegotiation of the 63/37 standard revenue split for any or all revenue models. If they cannot reach an agreement, then neither of the parties is obligated to offer the Rightsholder’s Books in the revenue models. (ASA Section 4.5(a)(iii))

11. Discounting off Consumer Purchase List Price. Google will now have an unlimited right to discount the List Price of Books for Consumer Purchase, so long as it continues to pay 63% of the undiscounted List Price to the Registry for Rightsholders. The Registry may also authorize Google to make special offers of Books for Consumer Purchase at reduced prices from the List Price and pay 63% of the discounted List Price to the Registry for Rightsholders. Claiming Rightsholders (and the fiduciary for unclaimed Books), however, will be notified of this reduced price proposal and can disapprove it for their (or unclaimed) Books. (ASA Sections 4.5(b)(i) and (ii))

12. Resale of Consumer Purchase. The Amended Settlement requires that Google allow third parties to sell consumer access to Books offered through Consumer Purchase, with the reseller receiving a majority of Google’s 37% share of the revenue split. (ASA Section 4.5(b)(v))

13. Non-discrimination Clause (i.e., “Most Favored Nations” clause). Section 3.8(a) of the Original Settlement has been eliminated from the Amended Settlement.

14. Settlement Controlled Pricing. The Amended Settlement clarifies that the Pricing Algorithm used to establish the Settlement Controlled Prices for Consumer Purchase will be developed to simulate the prices in a competitive market and that the price for a Book will be established without regard to changes to the price of any other Book. The Amended Settlement also clarifies that the Registry will not disclose the Settlement Controlled Price for a Book to anyone other than the Book’s Rightsholders. (ASA Sections 4.2(b)(i)(2), 4.2(c)(ii)(2) and 4.2(c)(iii))

15. Modification of Feature Restrictions. Rightsholders may authorize Google to modify or remove the Amended Settlement’s default restrictions on Revenue Model features, such as copy/paste and print. (ASA Section 3.3(g))

16. Registry Support for Alternative Licenses (Including Creative Commons). The Amended Settlement provides that the Registry will facilitate Rightsholders’ wishes to allow their works to be made available through alternative licenses for Consumer Purchase, including through a Creative Commons license. For information about Creative Commons licenses, visit http://www.creativecommons.org. The Amended Settlement also clarifies that Rightsholders are free to set the Consumer Purchase price of their Books at zero. (ASA Sections 1.44, 4.2(a)(i) and 4.2(b)(i)(1))

17. Public Access Terminals. The Amended Settlement authorizes the Registry to agree to increase the number of public access terminals at a public library building. (ASA Section 4.8(a)(i)(3))

18. Pictorial Works. The Amended Settlement no longer includes children’s book illustrations in the definition of Inserts. (ASA Section 1.75) The Amended Settlement, however, does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement. (ASA Section 1.104)

19. Music Notation. The definition of Book was amended in the Amended Settlement to better achieve the parties’ goal of excluding books that are primarily used to play music. (ASA Section 1.19) Also, “music notation” is no longer included in the definition of Inserts. (ASA Section 1.75)

20. Deadline to Claim Usage and Inclusion Fees. Usage Fees will now be held for Rightsholders who have not yet claimed their Books for at least ten years and Rightsholders will now be eligible for Inclusion Fees if they claim their Books or Inserts within ten years of the Effective Date, instead of five years, in both cases as had been provided in the Original Settlement. (Plan of Allocation Sections 1.1(c), 1.2(c) and 2.2)

Your Rights Under the Amended Settlement Agreement

Members of the Amended Settlement Class have the following options:

Rescheduled Date of the Fairness Hearing

The Court will hold a Fairness Hearing on February 18, 2010 at 10 A.M. in Courtroom 11A of the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl Street, New York, NY 10007, to consider whether the Amended Settlement, as set forth in the ASA, is fair, adequate and reasonable. Please review the original Notice for further information concerning participation in the Fairness Hearing.

If you have any questions concerning this Supplemental Notice or the Amended Settlement, please contact Class Counsel, or the Settlement Administrator, whose contact information may be found in the original Notice or at http://www.googlebooksettlement.com. You may also contact the Settlement Administrator at:

Google Book Search Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
+1.612.359.8600 (Tolls may apply. Toll-free numbers are available at http://www.googlebooksettlement.com.)

The new proposal essentially covers just works from the US, UK, Canada and Australia. Representatives from those countries will be on the board of the Rights Registry that will be formed to record and look after the interests of affected rightsholders whose works have been scanned.

In a blog post announcing the filing, Google Books Engineering Director Dan Clancy wrote:

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.

Interestingly, many of those from countries excluded from the deal might now be asking themselves, “Why can’t we be in, too?” Perhaps this is part of the clever psychology of the deal, creating an apparent “haves” and “have nots” so that the excluded parties feel obliged to open negotiations with Google.

In Europe, this will probably head off the showdown that was looming with the European Union. And worldwide, the deal might have the positive effect of moving governments and cultural institutions from their slumber to start seriously investing in digitising their written heritage.

From New Zealand’s point of view, as one of the excluded parties, it opens up real opportunities to take control of the process and to do it in a way that is more respectful of rightholders and copyright protections. This should be a spur for the public institutions and the commercial sector to join forces and begin the process of digitising important older,  in-copyright works.

Thanks to TeleRead and Publishers Lunch for the summary of key points below:

The revised Settlement has made a number of important changes:
1. Foreign language works are out: the scope is limited to works registered with the US Copyright Office and books published in Canada, Australia and the U.K. There will be representatives from those countries on the Book Rights Registry board.
2. There will be an independent court-approved fiduciary who will represent rights-holders of unclaimed books and act to protect their interests, including licensing their works.
3. The Books Rights Registry is not required to search for rights-holders who have not come forward.
4. Third parties will be able to sell access to all settlement works, including orphans, even though Google will host the titles.
5. Revenue models have been limited to print on demand, file download and subscriptions.
6. Rights-holders may make their works available for free.
7. The Google’s most favored nation treatment has been eliminated allowing the Registry to license works to third parties without extending the same terms to Google.

See also this New York Times story.

Given the scale of the announcement — the move will make the Kindle, previously only available in the US, accessible to readers in 100 countries — the details are still unfolding. In my haste to get the story out, I initially picked it wrongly myself and thought New Zealand was in the first wave. It wasn’t.

This item from Bookseller UK casts light on one key issue: Did Amazon rely on global rights for the titles it will make available or will it respect the mesh of territorial rights that make the book business so complex. The answer, it seems, is that territorial rights are safe and secure. From Bookseller:

Publishers have been assured by Amazon.com that territoriality will be respected following the international launch of its Kindle e-book reader this week.

… Amazon said a safeguard has been put in place to respect territorial rights. A spokesman added: “When a customer first buys Kindle content, they identify their region or country. In order to simplify their browsing experience, we then display the appropriate catalogue for the customer. When they travel, the content available to a customer is determined by their home country, not by the country they are travelling in.”

This is good news for those of us who think this long-established practice is as important in the digital age as it has been in the print world. It will be interesting to see if it remains the norm or is just a legacy issue to deal with the past. But even a short period will serve a useful purpose in allowing country and regional markets to get established in the face of large, global competitors.

On the subject of New Zealand which, along with Canada, Singapore and a range of other territories, will be Kindleless next week, I’m still trying to get to the bottom of this. It was especially surprising given that Australia will be in the initial launch group and, in terms of territorial rights, are very similar. See this excellent round-up of who gets what over at Blog Kindle.

Major publishers I spoke to here did not believe the issue of rights should have stopped New Zealand customers from accessing Kindle ebooks. If it’s a telco issue, it will hopefully be resolved soon since Amazon’s network partner AT&T has data roaming agreements with two mobile operators in this country.

[Update: 10:30am. This story from Chris Keall at NBR confirming rumours that telco issues are causing delays. Vodafone has confirmed it's in talks with Amazon about bring the Kindle here.]

It’s probable, given our small size, that any complication, no matter how minor, will see New Zealand pushed back.

In the meanwhile, booksellers and other industry players can knuckle down and work on bringing their own ebook plans forward, ahead of the Amazon juggernaut. Witness this amazing statistic, just provided by Amazon CEO Jeff Bezos to Wired magazine: Of books available on Amazon in both paper and Kindle ebook formats, 48% now choose the Kindle format. That statistic is well up from the already-impressive 35% figure he gave earlier this year.

[Update: 1:37pm Just had a call to tell me that Amazon is not presently able to ship to New Zealand but will ship to Australia. Have amended story.

Update: 9 October 2009.  See story: Details still unfolding.]

And if you don’t want to buy a US$279 Kindle from Amazon.com, you can still access it from the free Kindle app for the iPhone. The international wireless support comes via the AT&T wireless network. Outside the US, AT&T uses the common GSM system supported by operators such as Vodafone, Telecom and Hutchison. Amazon will add a US$1.99 surcharge for each ebook download from outside the US to cover wireless charges.

Among the publishers supporting the Amazon move with global rights, making their ebooks available for sales to non-US territories are:

Atlantic Books, Bloomsbury, Canongate, Faber and Faber, Hachette, Harlequin, HarperCollins, Lonely Planet, Penguin, Profile Books, Quercus, Simon & Schuster and Wiley.

A notable absence, Random House, is still in discussions with Amazon.

As well as books, more than 85 newspapers and magazines, including many international publications, are now available for subscription on the Kindle.

For those among who would have liked less global and more local in the territorial rights issue, it’s time to put that debate behind us and work with the new rules that will clearly be predicated on global editions. This will impact on English language titles and many other geograpahically dispersed languages such as Spanish.

• For publishers in all territories, it’s now time to do deals with Amazon, not just for international sales but for an early shot at early adopters in their domestic markets.
• For Amazon competitors in the ebook reader space such as Sony, it’s time to put the leisurely pace of global roll-outs behind them and crank into high gear. Let’s hope New Zealand and Australia are at the front of the queue now.
• For Amazon’s bookselling competitors, it’s time to get started because if they don’t build brand awareness in this space fast, they won’t get into the game. There’s only going to be room in customers’ heads for a tiny number of sites when they think where to go and shop. Booksellers at the country level will need to differentiate on the basis of local prices (Kindle sales are still $US but that will change), local title availability and local promotion.
• Expect to see the global rights issues sorted out pretty soon by early global e-booksellers such as Barnes and Noble‘s Fictionwise and the recent Canadian entrant with global aspirations, Shortcovers.

Amazon is already a major global presence. In the press release announcing this, Amazon CEO Jeff Bezos refers to the “millions” of existing international Amazon customers. Certainly, a lot of them wil reside Downunder so we’ll expect a lot of Kindle users arriving here pretty smartly.

It’s our job now to make sure they’re reading local as well as international books. In this regard, the announcement this week that New Zealand copyright collective Copyright Licensing Limited (CLL) will lead the charge to get New Zealand books digitised and licensed to groups such as libraries, booksellers and others, couldn’t come soon enough. I’ll be part of that through the work we’ve been doing with the Digital Publishing Forum and the 1000 Great New Zealand Ebooks initiative.

Publishers will increasingly need to work with trusted digital content agregators  to get their digital content into many places, to negotiate with large players, track their digital sales and make sure their content is properly managed. Rights organisations such as CLL are well placed to do this if they can adapt from their current print-based role to the digital environment.

This very timely blog from Mike Shatzkin speculates on the need for such a role for the US rights organisation, the Copyright Clearance Center. Following the lead from CLL in New Zealand, we’re going to see more of this.

We live in exciting times.

“By permitting Google to engage in a wide array of new uses of most books in existence the settlement would alter the landscape of copyright law,” said head Marybeth Peters in testimony to a US congressional committee. “That is the role of Congress, not the courts.”

To its credit, the US Register of Copyright submission also went strongly into bat for international rightsholders.

We are troubled by the fact that the proposed settlement implicates so many foreign works even when they have not taken steps to enter the United States market. While it would be appropriate to allow foreign nationals to participate voluntarily in licensing programs that may be developed by the BRR [Book Rights Registry] or other collectives, they should not be automatically included in the terms of the settlement. Moreover, we are aware that some foreign governments have noted the possible impact of the proposed settlement on the exclusive rights of their citizens. Indeed, many foreign works have been digitized by Google and swept into the settlement because one copy was in an academic research library in the United States. As a matter of policy, foreign rights holders should not be swept into a class action settlement unknowingly, and they should retain exclusive control of their U.S. markets.

This is the sort of spirited defense that we’d like to have heard from our own side. While European governments have been vocal, even gaining some concessions from Google to put Europeans on the BRR board, not an official peep has been heard from either the New Zealand or Australian governments on this matter, despite prodding and widespread coverage and concern.

Here’s a link to Peters’ full submission to the US House Judiciary Committee. Thanks to Lynley Hood for the link.

I’d welcome comments, corrections or alternative points of view from anyone who might be better informed on some of this stuff that I am.

Disclaimer: I’m not a lawyer, I haven’t read the 300+ pages of the document and, despite having read widely about this, I don’t recall having seen a really thorough summary of the deal.

So, here’s what I’ve done and some of the issues or knowledge gaps that have led me down this path.

1. I’m personally opting out.
2. Whatever you do, do something because doing nothing is bad. It seems you’ll be deemed to have opted in and will get the “benefits” whether you like it or not. In my opinion, the financial benefits look too small to make a leap into the unknown for.
3. You will certainly be handing over some non-exclusive rights to Google if you opt in. I’m not familiar with all of the rights you’re handing over (the right to scan and hold the file is a minimum).  And I’m not sure how granular your control over them will be (eg to restrict them from selling, or restrict from viewing, or limit amount viewed, etc). However, as a matter of logic, if you assign some digital rights non-exclusively to Google then you’ll never be able to assign those digital rights exclusively to anyone else later, though you will be able to assign them non-excusively. And you’re handing those rights over for a very long time as far as I know. I don’t think you can cancel once in, only that you can restrict usage.
4. If Google sells your work, I’m not sure you will have much control over price and terms. eg The sale might for be for a one-time fee, eg libraries and institutional buyers would buy your book outright for a single payment and no further payment – eg a per loan charge – would be needed. This would restrict, and create competition for, your other channels. I personally think this approach — selling digital copies outright to allow their long term, payment-free lending — would be a mistake. I think Google has the potential to distort and devalue the ebook market on a huge scale in the same way that I believe Google has distorted the advertising-driven media market.
5. If you opt-out of Google selling your book because you want more control over it, I’m not sure what benefit there would be compared to simply using the Google Books Partner Program (terms  here) to scan your book purely for search purposes.
6. Even if you don’t opt into the class settlement, I’d guess you’ll be able to do business with Google at a future date, possibly on more favourable terms and certainly with the benefit of more time to see how it evolves.

I hope this is of some help. As noted, I haven’t read the agreement or seen any comprehensive summary of its 300pp, so it’s quite possible some of these concerns might be misguided but if I’ve got them I imagine there will be others out there with similar concerns.

In New Zealand, it hasn’t been well-received, particularly by authors following this legal opinion from their association, the New Zealand Society of Authors.

The idea that a private settlement by private US parties serving their own interests will drag rightsholders from all around the world into Google’s net has got blood boiling. It’s being compared to a situation that led to an icon of local protest. In the 1980s, tiny New Zealand stared down US pressure to impose a statutory ban on visits by US nuclear armed or powered warships which still holds today.

The purple prose coming from the New Zealand Society of Authors suggests a literary canon overflowing with airport potboilers. The deal is cultural imperialism on a par with the 1980s US flexing of military might over nuclear ship visits, says the Auckland branch secretary of the Society of Authors, Adrian Blackburn. ” … This monopolistic pre-emptive grab by a hugely wealthy US business – ‘we’ll just do it and you can sue us if you can afford to’ – is an arrogant flexing of business muscle …

Read the full story from the New Zealand Herald.