Advice to non-US authors and publishers on Google Books settlement: Doing nothing is a bad move

A notice from the New Zealand Society of Authors (NZSA) highlights a problem that will affect most non-US authors and publishers if the proposed Google Books Settlement is ratified by a US court later this year.

“Unless New Zealand authors or publishers formally opt out of the settlement, or formally opt in but request Google not to digitize and/or display their books, Google will have the non-exclusive right to digitize any of their books that were published anywhere before 5 January 2009, whether it has digitized them already or not,” claims a statement from the Society’s legal advisor Rick Shera of Lowndes Jordan.

The NZSA is also calling on the New Zealand government to conduct an enquiry into the Settlement to ensure that New Zealand authors and its literature are protected.

Ironically, it seems that non-US publishers and authors might be dragged into this US settlement through their countries’ being signatories of the Berne Convention. The Berne Convention is an international copyright treaty. One of its requirements is that signatory countries extend the same rights to other  signatories as they extend to their own rightsholders. Since the US is a signatory (as is New Zealand and most countries), the terms of the Google Books Settlement will be extended to other Berne Convention signatories.

According to the NZSA’s advice, the rightsholder has four options:

1. Negotiate a separate deal with Google under its partner program. For those that already have, the Partner Program agreement will take precedence although it may or may not cover all the rights that Google gets under the settlement agreement.
2. Opt out by formally notifying Google. The deadline for opting out has been extended to 4 September 2009.
3. Opt in. If you opt in and lodge a claim in respect of a book prior to 5 January 2010,you will receive a share of the $45 million that Google has put aside to pay rightsholders (the exact amount will depend on how many people claim but will be between US$60 and US$300). You will also receive 63% of any revenue received by Google (e.g. from advertising around your book search result or if it is made available on subscription to a library or other institution).
4. Do nothing – in which case you will lose the right to sue Google in the US even if Google does digitize your book and publish excerpts and you will not receive any revenue for that use.

The last option — do nothing — is the worst, says the NZSA. “[U]nless you formally opt out of the settlement, or you formally opt in but request Google not to digitize and/or display your books, Google will have the non-exclusive right to digitize any of your books that were published anywhere before 5 January 2009, whether it has digitized them already or not,” the NZSA says.

[I]f your book is not generally available for sale in the US, then it is considered out of print and Google can display excerpts without needing any consent. Google is also granted other rights such as the right to sell advertising alongside search results, to sell subscriptions to entire books to partner institutions (libraries etc) and to publish bibliographical material.

So it seems that, even outside the US, unless you want to be part of Google’s books programme, you should explicitly opt out.