— a panel discussion

North York CentraL Library 5120 Yonge Street, Toronto (at Sheppard)

Thursday, April 14th 6:30 – 8:30 p.m.

This free public forum will feature a discussion with authors Sarah Sheard, Susan Swan, John Degen, (also in his role as the Literature Officer at the OAC) and book promotion and marketing wiz, Deanna McFadden of Harper Collins Canada. Moderated by writer-in-residence, Elizabeth Ruth. The Changing Book panel will discuss and reflect upon e-revolution in books – the impact of new technologies on readers, writers, libraries, booksellers, publishers and the stories that get told.

Questions may include: how might writers find creative ways to promote and sell their works in this new digital age? How will e-reading change our concept of narrative? Is it still a book if you’re not holding its spine in your hands? Does that matter? What’s the role for traditional book publishers? What’s the difference between a writer and a ‘content creator’? What’s the impact on personal histories, of a virtual library? Really, the questions are endless. We hope you’ll join in with some of your own.

For more info please visit the website of the Toronto Public Library and search under writer-in-residence. Please spread the word to readers and writers.

Here’s the location: North York Central Library

5120 Yonge Street and Sheppard Avenue. Located on west side of Yonge Street on the north side of Mel Lastman Square beside the North York Civic Centre.
Public Transit: TTC subway station North York Centre. Walk to library located in the mall.
Parking: Paid – parking lot on Beecroft Road, meter parking on side streets, paid parking lots in vicinity and underground

Information: 416-395-5535

After seven years of Google digitizing books without the consent of the copyright holders, the only point that is clear is that the efforts of three parties – Google, the Authors Guild (AG) and the Association of American Publishers (AAP) – to resolve the many issues involved were totally unsuccessful and left most matters yet to be decided, added Goldbetter. NWU hopes that any future settlement talks will include other writers’ groups like the NWU in addition to the Authors Guild, which, according to the judge, may have “antagonistic interests” with at least certain other writers. (Authors Guild v. Google, Inc., 05 CIV 8136 (DC 2011), p. 20. “NWU looks forward to hearing from Google, AAP and AG about how they plan to broaden the negotiations to include all those who offered substantive objections to the settlement,” stated Goldbetter.

NWU agrees with Judge Chin’s determination that certain matters covered by the proposed settlement should properly be decided by Congress, not the courts. The judge included in that category so-called “orphan works,” books whose copyright holders are not easily ascertained, and rights of foreign authors and publishers, who expressed strong objections to the settlement.

NWU would add to the list for Congressional action the creation of a nationwide, publicly funded digital library, which the settlement sought to place in the hands of Google and unnamed, privately appointed representatives of AG and the AAP. NWU believes in general that Congress is better placed than the courts to protect authors against the kind of wholesale commercial piracy undertaken by Google. NWU notes that the proposed settlement and Judge Chin’s opinion did not deal with the inherent conflict between publishers and authors over control of copyrighted books, a matter that should be addressed in sorely needed copyright reform legislation. As Judge Chin noted, citing a 25-year-old Supreme Court decision, it is “Congress’s responsibility to adapt the copyright laws in response to changes in technology.” (Authors Guild, p. 23)

“Whether in renewed and expanded settlement discussions or in Congress or both,” Goldbetter stated, “the National Writers Union looks forward to working with our litigation partners, the American Society of Journalists and Authors and the Science Fiction and Fantasy Writers of America, to assure that the rights of writers to their works are fully and fairly protected.”

To visit National Writers Union click: http://www.nwu.org/

Notes on acronyms: TWUC = The Writers’ Union of Canada. The amended settlement’s acronym is ASA (Amended Settlement Agreement.) For simplicity we will refer to all versions as the Google Book Settlement (GBS).

WHAT TWUC SAID versus WHAT THE COURT DECIDED

I took a quick look at Judge Denny Chin’s judgment, alongside TWUC’s objections, and found that TWUC did not have much to do with his decision.  Our brief, on the other hand, did.   Here are the three documents:

Chin: http://thepublicindex.org/docs/amended_settlement/opinion.pdf

TWUC: http://thepublicindex.org/docs/objections/wuc.pdf

CWAG: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/961/

So, let us remind ourselves of TWUC’s official views of the Google Book Settlement,  compared with what Judge Chin thought of it.

Chin was first and foremost concerned that the GBS would create a virtual online publishing monopoly that would exclude competition.  He cited the anti-trust objections of the Department of Justice.  At the very least, he pointed out that the settlement  “would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.”  TWUC was silent on this.

Chin concluded that the settlement “is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”  TWUC, however, wrote: ““We do object to certain aspects of the settlement, and request that it be modified to address these issues”.  In other words, TWUC never questioned the fundamental legitimacy of the settlement.

Chin did not like the “opt-out” provisions of the settlement, whereby Google has the right use your work unless you ask them not to:  “…many of the concerns raised in the objections would be ameliorated if the (GBS)  were converted from an opt-out settlement to an opt-in settlement.”  While asking for certain concessions regarding the time frame for removing works from view, TWUC did not actively disapprove of the “opt-out” principle in itself.

Chin had very serious questions about the right of the Authors Guild plaintiffs to represent all authors,  and also cited the number of objectors, noting that “the number and vociferousness of the objectors is a factor to consider in weighing reasonableness of proposed settlement”. On the other hand,  TWUC never questioned the right of the Authors Guild to speak for TWUC members.

Chin regarded all of Google’s digitizing as an infringement but most important (as noted above) he concluded that future sales based even on past infringement are not allowable.  On the other hand, TWUC did not object to Google using material digitized before 2009, so its objection to digitizing after that date seems pretty lame to me.   But the point to remember is this:  Chin did not care when the material was digitized, he cared about Google making money off it.

Chin was concerned about objections that the GBS violates international law.  TWUC agreed with that, which seems encouraging at first read-through.  What is not encouraging, however, is that TWUC still wanted to be part of the settlement and to allow the Authors Guild to speak for them.   This is a pretty fundamental contradiction. Chin thought that the problem of orphan works should be dealt with by Congress.  TWUC also had that position, which is good.  However, TWUC did not seem to realize that this would make the GBS into a creature completely unlike itself, and would be tantamount to demanding that the settlement be rejected.  When this suggestion was ignored in GBS 2.0, it should logically have triggered a demand from TWUC to reject the settlement.

TWUC keeps trying to justify its non-position by claiming it wanted its members to have a “choice” about opting in or opting out.  This claim is not true. In at least one letter to members, TWUC found it worthwhile to point out that no members of National Council had opted out, and the impression of TWUC members is that the TWUC executive and council supported the settlement, however reluctantly.  As noted above, Chin regarded the sheer number of objections and opt-outs as significant.   TWUC could easily have tipped the balance and saved us a lot of trouble.

In short, TWUC never demanded rejection of settlement 2.0 (despite the Quill & Quire headline “TWUC rejects amended Google settlement”  http://www.quillandquire.com/google/article.cfm?article_id=11007 All TWUC did was refuse to endorse it.  And that weakly negative stance was invisible to the court.

I first became aware of  the New-York based National Writers’ Union (NWU) during our recent battle against the Google Book Settlement. Unlike our  Canadian unions — and the American Authors’ Guild, which brokered the Google deal — the NWU spoke up bitingly against the GBS, demonstrating an inspirational level of leadership on behalf of its members.

It is an activist union. In my view, this is what writers must have, at this time. NWU is vocal and specific about contract terms and has set high royalties for erights. They are not afraid to litigate. Their affiliation with the UAW (United Auto Workers) puts hard-line union teeth into their commitment. I contacted them to discuss how Canadian writers might participate with NWU.

Ten days ago, I  met in person with Larry Goldbetter, President, and Karen Ford, 3rd Vice President, who travelled to Canada to meet with me, writer David Bolt and Linda Page, a Canadian academic writer. We discussed how Canadian writers might join forces with NWU in order to fight together for a fair share of erights and related digital issues soon to confront all writers on this continent and elsewhere.

We agreed that digital publishing cannot be contained within geographic boundaries and will have vast implications wherever/however our writing is marketed to readers. We believe that writers can best fight for their creators’ share if they stand together, pool information and network with one another — certainly within North America. Possibly with Europe too, as we did, when we  joined with Gillian Spraggs in the U.K. in formally objecting to the Google Book Settlement.

In March, I resigned from The Writers’ Union of Canada. I do not believe it is sufficiently committed to fighting hard and smart on behalf of its members. This is a critical time for writers quickly to get savvy to the technology reshaping our livelihoods, and to put more voice into how we make our cultural contribution.

TWUC is currently searching for a new Executive Director. A steep learning curve lies ahead for whoever takes the wheel. Here’s hoping TWUC finds someone with both the passion and the steel to advance writers’ causes effectively. Meanwhile, there is no time to lose.

I am joining NWU. Its site is a model to me of what a writers’ union ought to be. At last, I thought, reading it. A real union. It is strong both in its advocacy and in its services, although it explains it is not a service organisation. Its posted Digital Bill of Rights and Campaign for Digital Rights is a passionate declaration of first principles. It will also look over contracts, patch you into a high-octane listserv of member writers across America and circulate a regular newsletter with very chewable contents.

Its membership is open to professional writers as well as to writers aspiring to break into the field. Its annual dues are scaled to earnings, starting at $120 (U.S) if your writing income is under $5000. It also offers a 6-month membership. There is no need to drop membership to other writers’ organisations in order to join NWU.

I urge you to visit their site and check it out for yourselves. I hope you will consider joining it. www.nwu.org.

United we stand.

Sarah Sheard

There are far too many of you now to email separately.  But I have very much enjoyed corresponding with you, and if you would like to reply, please do so.

I have had a lot of questions from you about when this mess might get resolved.  Short answer: nobody knows.  The judge in New York City has given no indication when he will rule for or against the settlement, though one educated guess put June as a possibility.  The judge has a lot of issues to think about, from class action law to international trade agreements.

There has been a wide range of comments from you about the passivity of your respective writers’ associations. You asked: why was it up to individuals to object?  Good question.  Maybe you should ask it of your groups’ representatives, executive, and legal counsel.

In sharp contrast, all major US writers’ groups (except the Authors Guild, which negotiated it) condemned the Google Grab unequivocally.   These were: ASJA (American Society of Journalists and Authors), NWU (National Writers Union), and SFWA (Science Fiction and Fantasy Writers Association).

I am happy to report, however, that one Canadian group did step up and demand rejection of the settlement.  CAUT (Canadian Association of University Teachers) is comprised of 65,000 members, and their brief focused on academic writers.   “CAUT counts among its members many tens of thousands of authors, authors who come from all provinces and territories of Canada. By definition, such Canadian authors are members of the class and bound by the PASA. (Proposed Amended Settlement Agreement). The PASA– a private commercial document negotiated between a commercial actor (Google) and American commercial writers’ and publishers’ representatives (the Authors Guild and the American Association of Publishers) – reflects the commercial interests of its negotiating parties.  These interests are commercial – not academic – and American – not Canadian.”  Here’s the brief: http://www.caut.ca/uploads/CAUT_Google_Settlement.pdf

There has been a dramatic new development in the Google Books story.  A coalition of photographers and illustrators, led by the American Society of Media Photographers, has just sued Google for copyright infringement.   Those of you who have books with visual material in them may be affected by this.  Up to now, the settlement has only applied to the printed word, leading to the possibility of Google displaying the text but not the images of certain books… a peculiar notion when you consider childrens’ books.  This development could very well tie up the deliberations.  Those of you who are affected by it might consider anti-Google action on behalf of Canadian photographers and illustrators.  Meanwhile, Google keeps on copying, with no injunction to stop them.  Here’s the lawsuit brief:  http://reporter.blogs.com/files/complaint-2.pdf

Best Regards, David Bolt

http://thepublicindex.org/docs/amended_settlement/CAUT_objection.pdf

The PASA puts the United States in violation of international intellectual property law and specifically in violation of trade agreements among Canada, the United States, and other parties as those agreements relate to copyright.

The PASA wrongly singles out Canadians for inclusion amongst the Author sub-class. The Canadian copyright regime is distinct from American copyright law in ways that will implicate Google and potentially the Book Registry in liability for copyright infringement in Canada, particularly with respect to Canada’s legislative provisions in respect of moral rights and its licensing scheme for unlocatable copyright owners (what Americans call “orphan works”), neither of which have correlatives in US law.

The PASA’s inclusion of Canadians in the Author sub-class is wrong for a second reason: the PASA does not account for the reality of Québecois and Canadian French-language authors among the Author sub-class. Québec, unlike other Provinces and Territories of Canada, is a civil law jurisdiction, and commercial dealings with copyrighted works reflect what we call a civilian view of the author. The PASA has generated a great deal of discontent among French language authors and CAUT’s Québec members.

The Authors Guild and the representative plaintiffs do not fairly and adequately represent the interests of Canadian academic authors in negotiating the PASA. Simply, many Canadian academics would not likely select a mechanism resembling that articulated in the PASA for distributing digital books. Academic authors in general place a higher premium on access than is reflected in the PASA.

The PASA includes minimal privacy protections. The PASA’s inconsiderate treatment of privacy interests is inconsistent with Canadian academic values. More troubling, the PASA’s failure to require privacy guarantees puts the PASA at odds with Canadian privacy legislation and values more generally.

February 2, 2010 | 7:16 PM | By Stuart Woods, Quill & Quire

http://www.quillandquire.com/google/article.cfm?article_id=11130

Last week marked two important milestones in the Google Book Search settlement: not only was it the opt-out deadline for authors, it was also the last chance for individuals and organizations to file objections to the settlement with the New York court overseeing the case.

The Association of Canadian Publishers and the Canadian Publishers’ Council both filed briefs in support of the settlement prior to Thursday’s deadline. However, an ad hoc writers’ group, known as Canadian Writers Against Google Settlement, called on the court to reject it. The brief was signed on behalf of some 175 Canadian writers, including Susan Crean, Heather Robertson, Monique Proulx, Russell Smith, Charlotte Gray, Judy Fong Bates, and Patrick Lane.

Prepared pro bono by University of Ottawa copyright lawyer David Fewer, the brief is the first to be filed by a group directly representing Canadian content creators. (The Writers’ Union of Canada, which represents more than 1,700 writers across the country, has not taken a firm position on the issue.) “This is a fairly strong statement by a large group of Canadian authors,” says Fewer, who is the director of the Canadian Internet Policy & Public Interest Clinic. “I would expect this to be taken fairly seriously [by the court].”

The brief is only the latest in a mounting tide of opposition to the settlement, which many are now speculating may be in jeopardy. The original settlement, which was taken off the table last October in the face of mounting global opposition, applied to publishers worldwide. A revised settlement, which will be the subject of a fairness hearing scheduled for Feb. 18, applies only to rights-holders in the U.S., Canada, the U.K., and Australia.

At the very least, Fewer expects the amended settlement will have to be revised again to exclude Canadian and other foreign rights-holders. “All of the reasons for why the rest of the world got excluded apply to Canadians,” he says, “and the onus is effectively on the parties in the settlement to say why Canadians should be included.”

In particular, Fewer says, the Google settlement fails to honour the Berne Convention governing international copyright and disregards the unique trade relationship between Canada and the U.S. under NAFTA. The settlement also disregards Canadian provisions for addressing orphan works, respecting moral rights, and providing privacy protection to readers online.

“There are some pretty significant distinctions between Canadian copyright law and American copyright law,” Fewer says. “It’s a very dangerous assertion to say that … we should be bound by a class-action settlement [in the  U.S.]”

February 1, 2010 –  They’re angry, and they’re putting their well-chosen words into action. Represented by eminent copyright lawyer David Fewer, Director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, a group of Canadian writers has filed a comprehensive legal objection to the Google Books Settlement with a US court in New York. The Canadian objection joins scores of others filed by three US writers’ organizations, other interested public policy groups, and individuals. The court will decide the settlement’s fate on February 18.

The objection grows out of a petition launched on New Year’s Day, in which the writers’ group called the settlement “an assault on international copyright law” and “theft of a cultural heritage.”  To date, the petition has accumulated over 500 signatures from Canadian authors outraged at Google’s attempt to foist a meaningless settlement on them after digitizing their work for commercial use without permission. One of the writers behind the petition is Katherine Gordon, a former contracts lawyer.  She notes, “The legal flaws in this appalling deal are so obvious even the U.S. Department of Justice has expressed its objections to it.  We think we have every chance of success in having the settlement rejected.”

The legal brief, prepared by Fewer after discussions with the lead authors, cites concerns ranging from NAFTA and the Berne Convention on copyright, to the special status of Quebec and French language writers.  The objection concludes: “These public policy choices should not be left to private litigants, nor should they be foisted on authors.  Such far-reaching changes should be taken up by domestic legislatures, debated between the users and authors whose legal rights will be affected, and implemented with the legitimacy that comes only from democratic decision-making.”

For the full objection brief, go to my blog post: CWAG files Letter of Objection

It’s been a Great Big Day. Today,  CWAG (Canadian Writers Against Google Settlement) filed our Letter of Objection with the US court. Over the last four weeks, we have received an outpouring of support from writers across the country who have signed our petition and added their names to our Objection Letter.

Who is CWAG?

a small collaborative of writers from BC, Yukon and Ontario: Mona Fertig, Katherine Gordon, Patricia Robertson, Kim Goldberg, David Bolt and Sarah Sheard.

CWAG was mightily assisted in this by lawyer David Fewer.

Who is David Fewer?

David Fewer is Acting Director of CIPPIC. (The Canadian Internet Policy and Public Interest Clinic, University of Ottawa, Faculty of Law. An intellectual property and technology lawyer, he brings a decade of experience to CIPPIC’s advocacy on intellectual property and technology files. Prior to joining CIPPIC, Mr. Fewer practised intellectual property and technology law and clerked with the Federal Court of Canada. He has taught and written extensively on intellectual property and technology law issues, and is a frequent commentator in the media on such issues.

How did this Letter of Objection come together?

We let David Fewer know our concerns and he and his students drew up this comprehensive and dazzling Objection Letter which now follows:

January 28, 2010

Office of the Clerk, J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007

Attention:  The Honorable Denny Chin

RE:  The Authors Guild, Inc., et al. v. Google Inc., No. 05 CV 8136

Dear Judge Chin,

We are a group comprising hundreds of Canadian authors who are part of the proposed Author Sub-Class in this proceeding. We write to register our objections to the Amended Settlement in the Google Book Search Copyright Class Action (“the Amended Settlement”). The Amended Settlement is a bargain between a single American company and a minority of American commercial authors and publishers. It is a settlement that our members do not accept.  In sum, we ask that the Amended Settlement be rejected because it fails to:

1. honour America’s international obligations, as codified in the North American Free Trade Agreement (“NAFTA”)[1] and the Berne Convention (“Berne”)[2];
2. respect Canadian authors’ moral rights;
3. address the serious competition concerns raised by granting what amounts to a mechanical license, to a single American company, over millions of the world’s books;
4. provide privacy protection to online readers that is at least as robust as that provided in Canadian libraries and traditional book stores;
5. respect Canadian provisions for addressing orphan works; and
6. recognize that Canada, a bilingual and bi-juridical country,  has a cultural heritage and legal tradition that is dissimilar to those of the United States, the United Kingdom or Australia.

We therefore ask that the Court remove Canadian copyright holders from the proposed settlement class, and reject the Amended Settlement until these objections can be resolved.

1.     Honouring America’s International Obligations

As a state party to NAFTA, the U.S. is required to provide national treatment to foreign investors,[3] and to comply with substantive copyright policy provisions of the Berne Convention such as refraining from the imposition of formalities.[4] The terms of the Amended Settlement, described in detail below, would rob Canadian class members of these protections.

Court approval of the Amended Settlement would violate American treaty obligations to protect Canadian copyright holders.  If the U.S. does not meet these obligations, remedies will be available to both the Canadian government and Canadian authors and publishers under the enforcement provisions of NAFTA. We object to any settlement that would violate international protections for Canadian authors and publishers, and we hope that the Court will consider the following obligations when evaluating the settlement.

a.     NAFTA

Approval of the Amended Settlement may subject the U.S. to trade sanctions under NAFTA. A book falls within the definition of “investment” provided in NAFTA, which includes “real estate and other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit.”[5] Canadian authors and publishers who relied on U.S. copyright law to protect their intellectual property would therefore meet the definition of “foreign investors” for the purposes of NAFTA.

The Amended Settlement may violate NAFTA’s substantive provisions in Article 1102, which requires that each Party provide to investors of another Party “treatment no less favorable than that it accords, in like circumstances, to its own investors.”[6] That provision obliges the United States to provide national treatment to Canadian writers and publishers.

The Amended Settlement does no such thing.  The rights of American authors are modified by the settlement only if their books were registered with the copyright office before 5 January 2009; publication is not enough.  In contrast, Canadian authors’ rights are changed by the settlement if their books were merely published in the U.S. before 5 January 2009. In other words, the Amended Settlement treats Canadian authors differently than it treats American authors.  And while such inequity can be excused by a rational state policy objective,[7] none has emerged.  In fact, the Amended Settlement compounds the differential treatment of Canadian authors by inexplicably providing yet another version of the settlement for authors from France, Germany, New Zealand, much of Europe, and elsewhere.  These are not distinctions based on principle or an overriding state interest; they are distinctions of convenience that cannot excuse a clear violation of NAFTA’s national treatment requirements.

Moreover, this violation would be attributable to the U.S. government, and would not be saved because it is an arrangement between “private” litigants. A state is responsible for the internationally wrongful acts of its courts.[8] As an apparatus of the state, the Court’s actions and omissions will be attributed to the U.S.  Therefore, a court-approved settlement violating America’s international obligations would trigger responsibility of the U.S. at international law.

b.     BERNE

In 1971, formalities were abolished in the Paris text of Berne.[9] As a ratifying party of Berne, the U.S. is obliged to allow foreign copyright holders from other countries to enjoy their copyrights without being “subject to any formality.”[10] The Amended Settlement violates this requirement: Canadian author must comply with the terms of the Amended Settlement in order to prevent Google from copying, indexing, and potentially profiting from his or her copyrighted work.  These requirements amount to formalities, contrary to Berne.  For the reasons described above, approving the Amended Settlement will put the U.S. in breach of its international obligations.

The solution to this is simple.  If foreign authors are allowed to opt-in to the Amended Settlement instead of being forced to opt-out, the U.S. will remain in compliance with its Berne commitments.

The requirements of Berne are incorporated into NAFTA.[11] A violation of the former will give rise to remedial procedures under the latter.  In other words, Canada, or a Canadian investor, may have a cause of action against the U.S.  We strongly object to any settlement that would violate Canadian authors’ rights of protection in the U.S.

2.     Respecting Canadian Authors’ Moral Rights

In addition to violating international law, the Amended Settlement unfairly infringes rights allotted to Canadian authors under Canadian copyright law.  Canadian authors enjoy legal protection for moral rights in the work they create.[12] When copyright owners authorize the reproduction of their works, as is their right, they may consider whether their work will be associated with commercial services.  If such an association is objectionable to the author, they have the right to withhold a license to reproduce, perform, or otherwise exploit the copyright.  The Amended Settlement violates our moral rights in two ways.

First, by lumping all Canadian authors into the class, they have no choice but to be associated with Google until they successfully remove themselves from the class.  Such a removal would require an author to learn of the settlement, understand that their work is implicated, ascertain the procedures for removing him or herself, and then undertake those procedures.

Second, while a Canadian author’s work is included in the Google project, it will likely be displayed alongside advertisements that will be selected from Google’s corpus of keyword-triggered ads.  Juxtaposing a literary work with any number of advertisements, none of which are approved or even approvable by the author, will effectively vitiate the author’s moral rights to be associated—or to decline association—with a particular commercial message.  Where an author objects to the commercial message, such association may prejudice the honour of the author.

One might argue that the solution to these moral rights concerns is to opt-out of the settlement.  This kind of burden-shifting should not be permitted.  Canadian authors have rights under Canadian law, and those rights are protected by international instruments that the U.S. has ratified.  It is no answer to tell a Canadian author, whose rights are about to be infringed by an American corporation implementing a court-approved settlement, that they must undertake their own protection.  Such a rule flies in the face of the formality-free, national treatment regime that the U.S. has agreed to provide for Berne-country authors, including those from Canada.

3.     Addressing Competition Concerns

We also object to the Amended Settlement because a monopoly, even one piloted by Google, in the electronic publishing industry will be bad for all authors and consumers. Google’s breathless intentions to grant access to the entirety of human knowledge are laudable. But in matters of copyright, the negotiation of a license is a necessary, important, and proper step in bringing an entire commercial work to the public.  If Google can simply skip that step, paying a one-size-fits-all fee for its uses, it will enjoy a near-insurmountable advantage over any other competitor in the electronic book market.  As the Department of Justice wrote about the original settlement, it is unlikely that:

“a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reasons to think that history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could otherwise not be negotiated lawfully.”[13]

Without the corrective influence of competition, there will be insufficient checks on any anticompetitive behaviour that Google begins to exhibit.  Condoning such a monopoly position would be irresponsible, and would damage the interests of all users and authors of copyrighted books.

4.     Providing Privacy Protections to Online Readers

We also object to being included in the Amended Settlement because it fails to protect the privacy of our readers.  The right to read anonymously is crucial to a healthy democracy.  In the offline world, that right has been protected by the physical characteristics of books, legal protections for reader privacy, and the norms of the book-selling industry.  It was easy to take for granted the high level of privacy afforded by reading a physical book.

That may change when most of the world’s books are available, and perhaps eventually read, on services like Google Book Search.  In contrast to the privacy-respecting nature of reading offline, Google’s business model is based on monitoring and monetizing its users’ browsing habits.  To minimize the privacy risks associated with this new reality, we call on Google to adopt the privacy-enhancing principles that have already been outlined by the Electronic Frontier Foundation and the American Civil Liberties Union.[14] Specifically, we support their call for Google to:

1. Promise not to disclose reader data unless compelled to do so by court order;
2. Limit tracking of its users, thereby reducing the amount of information that can be disclosed;
3. Provide user control over their privacy settings, and to allow users to “gift” books anonymously; and
4. Undertake to make its privacy decisions—including privacy policies and reports on information shared with law enforcement—transparent and publicly ascertainable.

We believe that the Proposed Settlement should be modified to reflect these privacy protections.

5.     Respecting the Unlocatable Copyright Owners System in Canada

With respect to the problem of licensing the work of unlocatable copyright holders, we prefer the existing Canadian approach to a Google-run monopoly. An oft-repeated claim about the Amended Settlement is that it will allow the legal dissemination of copyrighted material for which an author cannot be found. The dissemination of these “orphan works” is indeed an important issue.  However, Canadian copyright law already contains a mechanism for obtaining a license to disseminate works that have been orphaned by Canadian authors.[15] As such, the Amended Settlement is a duplicative and unjustified end-run around our domestic regime.

6.     Recognizing Canada’s unique cultural and juridical landscape

Books from Canada, the UK and Australia have been swept into the Amended Settlement because they apparently share “a common legal heritage and similar book industry practices.”[16] In actual fact, Canada has unique cultural, linguistic, and juridical characteristics that differentiate Canadians from other members of the Author Sub-Class.

Canada is a bilingual country whose two official languages, French and English, are used by Canadians across the country.  Canada is also a bi-juridical country where two legal systems exist side by side:  civil law in Québec and common law in other Canadian provinces.   The differences between the two traditions that Canada was built on are so profound that the Province of Québec is recognized as a distinct society within Canada.

The effects of being a bilingual and bi-juridical country are evident not only in Canada’s rich cultural heritage but also in Canada’s legal tradition.  Copyright law is not immune from the influence of Québec.  The close connection between copyright and culture has created in Québec an ethos that values the authors’ rights, including moral rights, in a way that is unique in Canada and is almost unrecognizable to American copyright experts. Notably, Canada was the first among its peer copyright countries to enact moral rights provisions pursuant to Article 6bis of the Berne Convention.[17]

Authors of French language books in Québec and elsewhere in Canada represent a vibrant cultural heritage that enriches the lives of Canadians, the value of which Google’s algorithms and aggregate results will fail to recognize.  The Amended Settlement, in lumping Canadian and Québec authors in with Americans into a common Author sub-Class, pays a disservice to Québécois, French-language authors, and Canadians.

It should be pointed out that UNEQ, the union of Quebec French-language writers, has more than 1400 members.  TWUC (the Writers Union of Canada) has 1850.  The French literary presence in Canada is enormous.

In addition, it should be pointed out that most notifications and the settlement document itself were in English.  While Canada is called a bilingual country, most English Canadians do not speak French, and many Quebec writers do not speak English, or if they speak it, not very well.  Certainly, not well enough to comprehend a complex document such as the GBS.  This English-only communication proved extremely frustrating for Quebec’s publishers and authors.   Several European countries objected strongly on this basis, and Quebec is entitled to object as well.

Conclusion

Today, the electronic publishing industry features online publishers who must negotiate separate contracts with rightsholders.  These publishers’ collections are necessarily fragmented and partial.  Even Amazon.com’s sale of electronic books for the Kindle, the world’s most popular e-reader, is constrained by its need to obtain individual licenses for the books that it sells. This must be frustrating for Google, as indeed it is frustrating for many authors and readers

A petition has been circulating among Canadian writers since New Year’s Day.  The petition asks for the Amended Settlement to be rejected.  While the more than 500 names on this petition are a mix of copyright holders who have both stayed in and opted out, it is fair to say that the settlement has become increasingly unpopular among Canada’s writers.

We have no opposition to using the Internet to make books more widely available.  We do, however, object to a company and a minor collective crafting a “settlement” that will upend American, and, by specific inclusion, Canadian copyright norms.  These public policy choices should not be left to private litigants, nor should they be foisted on Canadian authors.  Such far-reaching changes should be taken up by domestic legislatures, debated between the users and authors whose legal rights will be affected, and implemented with the legitimacy that comes only from democratic decision-making.

Respectfully,

David Bolt

On behalf of the following Canadian authors:

Kathy Page

George Payerle

Lyn Hancock

Peter Levitt

Penn Kemp

Chris Turner

Sandy Shreve

Patricia Pearson

Ann Diamond

Mary Soderstrom

Blanche Howard

Joe Rosenblatt

Bill Schermbrucker

Maureen Hunter

Heidi Greco

Debra Ann March

Margaret Dragu

Chris Banner

Gwenneth Steward

Judy D. Ivanda

Carol Matas

Farideh  Kheradmand

Jacques Pauwels

Christine Foster

Patrick O’Flaherty

Nancy Holmes

Daniel Wood

Daniel Bratton

Ed Overstreet

Barbara Florio Graham

Susan McCaslin

Marnie Parsons

Lou Allin

Susan Crean

A. Mary Murphy

Alex Binkley

Liza Potvin

Clea Roberts

Fred Kerner

Guylaine Beaudry

Christopher Levenson

Doug Symons

Margie Taylor

Robin Harlick

Rachna Gilmore

Liv Kennedy

Robert Thistle

Julie Keith

Carol Shaben

Jennifer Mitton

Wendy Priesnitz

Heather Robertson

Leslie Hall Pinder

Jamie Reid

Gordon A. Bailey

Eva Tihanyi

Erin Sullivan

Betty L. Dyck

Sharyn Heagle

Ron Smith

Monique Proulx

Terri Perrin

K. Louise Vincent

Patricia A. Donahue

Dr. Roy Jensen

Paul Vasey

Richard Paris

Susan Olding

David N. Docherty

Shauna Paull

Mary Lou Dickinson

Katrin Horowitz

Rick Blechta

Duane Radford

Edward Loyst

Sharon McKay

Allan Briesmaster

Ted Johns

Chris Brookes

E. Russell Smith

Andrew Scott

Darryl McMahon

Gordon Freeman

Michael MacLennan

Dr. Maxine Ruvinsky

Andrew Brown

Gwendolyn Southin

Barbara Murray

Joyce Nelson

Joseph Jones.

Peter Grauer

Carolyn M. Gossage

Graham Baugh

Susan Lyons

Heather Kellerhals-Stewart

Carole Giangrande

Ursula Vaira

Anthony Dalton

Ron Johnson

Jo Walton

Andrew Robulack

Barbara Lambert

Virginia Dansereau

Judith Fitzgerald

Rex Deverell

Tedde Moore

David S. Young

Robert Graham

Linda L. Richards

Star Weiss

Rod MacIntyre

Jane Goodwin

Maury Breslow

Charlotte Gray

Liz Clark

Candace Savage

Robin McGrath

Michael Shepherd

Pam Blackstone

Sean Horlor

Leona Gom

Noel Meyer

Glen Sorestad

Dawn Service

Stella East

Darlene Maynard

Shirley Skidmore

Thomas Philp

Barry Grills

Beverley Cooper

Joanne Arnott

Bethany B. Keddy

Di Brandt

Karsten Heuer

Joanna Lilley

Cynthia Flood

Mary Alice Downie

Robin Mathews

Margaret Slavin Dyment

Sandra Campbell

Richard Pound

Vanessa Winn

Ahava Shira

Sandra Janssen

Nelofer Pazira

Sandra Alland

Suzette Mayr

Judy Fong Bates

Nicole Markotic

Allan Fotheringham

Connie Marchand

Annie Fisher

Martha Roth

Tom Handford

Claire Eamer

Maggie Paquet

Joseph Nieforth

Nadine Shelly

Danda Humphreys

Derek Lundy

Barbara Scott

Michael Mitchell

Patrick Lane

Lorna Crozier

Derk Wynand

Erling Friis-Bastaad

Dennis Reid

Leslie Gadallah

Joanne Bealy

Roger Brunt

Katy Hutchison

Silvia Ivanova

Hayden Trenholm

Carl Johanson

Mathew Johnson

Paula Johanson

Virginia O’Dine

Cc. Michael J. Boni, Esq.
Joanne Zack, Esq.
Joshua Snyder, Esq.
Boni & Zack LLC
15 St. Asaphs Road
Bala Cynwyd, PA 19004
bookclaims@bonizack.com

Jeffrey P. Cunard, Esq.
Bruce P. Keller, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
bookclaims@debevoise.com

Daralyn J. Durie, Esq.
Joseph C. Gratz, Esq.
Durie Tangri LLP
332 Pine Street, Suite 200
San Francisco, CA 94104
bookclaims@durietangri.com

[2] Berne Convention for the Protection of Literary and Artistic Works, 9 Sept 1886, 168 Cons. T.S. 185, Paris text 1971 [Berne].

[3] NAFTA, supra note 1 at Article 1102(1).

[4] Ibid. at Chapter 17 (requiring that parties comply, at a minimum, with the substantive copyright provisions of Berne).

[5] Ibid. at Article 1139(g).

[6] Ibid. at Article 1102(1).

[7] See e.g. S.D. Myers Inc. v. Canada (2001), 40 I.L.M. 1408 at ¶250 (North American Free Trade Agreement, Chapter 11).

[8] See e.g. International Law Commission, Report of the International Law Commission on the work of its fifty-third session, GAOR, 56th Sess., UN Doc. A/56/10 (2001) 43 at Article 4(1).

[9] Berne, supra note 2 at Article 5(2).

[10] Ibid.

[11] NAFTA, supra note 1 at Chapter 17.

[12] Copyright Act, R.S.C. 1985, c. C-42, s. 14.1 [Canadian Copyright Act].

[13] U.S. Dept. of Justice, “Statement of Interest Regarding the Proposed Settlement” (18 September 2009) at 22-23, online: <http://www.justice.gov/atr/cases/f250100/250180.pdf>.

[14] Electronic Frontier Foundation, “Google Book Search Settlement and Reader Privacy” (July 2009), online: <http://www.eff.org/issues/privacy/google-book-search-settlement>.

[15] Canada Copyright Act, supra note 9 at s. 77.

[16] Google Public Policy Blog, “Revised Settlement FAQ” (13 November, 2009) <https://sites.google.com/a/pressatgoogle.com/googlebookssettlement/revised-settlement-faq/RevisedSettlementFAQ.pdf>.

[17] Ysolde, Gendreau, “Moral Rights”, in Gordon F. Henderson, ed., Copyright and Confidential Information Law of Canada, (Scarborough:  Carswell, 1994) at 161.

Debunking the latest Google fictions …

Fiction #1. I’m going to get $60 a book.
In your dreams.  Note that it’s (US)$60 per book to “the rightsholder”.  How that gets split between authors and publishers remains to be determined.

And if the book is deemed “in print” (many US publishers say all their
backlist is now in print forever because they are making it available in
POD or e-book format), the $60 is paid to the publisher.  It’s up to the
publisher to decide how much, if any, to pass on to the author(s),
according to the split specified in the author-publisher contract (which
of course probably didn’t provide for such a situation).

Even if authors believe that they own the electronic rights 100%, I think
the best they can hope for with most publishers is for the $60 to be
treated under the subsidiary rights clause, with a typical 50/50 split, or
US$30 per book for the authors.  More likely publishers will treat the $60
under the book royalty clause, and send the authors US$6-9 per book. To
get any better split, authors will have to take publishers to arbitration
or (maybe, if they can get past the arbitration clause) to court.

Fiction #2.  If the GBS is rejected, it will result in the lawless digitization of books.
This assertion is repeated often by The Authors Guild and TWUC (The Writers’ Union of Canada ) in the hopes that it will sink in.

In reality, the rejection of the GBS will result in Congressional legislation and the rule of law.
The Authors Guild likes to call this notion “Utopian”.  But it is not. The U.S copyright office was pressing for copyright legislation — as well as for the teeth to enforce it — before being interrupted by the GBS.  Constitutional copyright reform is front and center in this debate.  The GBS turns copyright law on its head, by turning a class-action settlement into an ongoing commercial deal, and this has offended a great many U.S. legal and constitutional observers who are making their concerns known to Congress.
The following eloquent quote from James Grimmelmann at New York Law School should be cast in bronze and put on bulletin boards across the country.

“From time to time, I’ve argued that the Google Books settlement tries to launder copyright reform legislation through a class-action settlement. In response, people often argue that Congress isn’t likely to pass copyright reform, or will foul up the task even worse if it tries. True or not, this misses the point. As outside critics, we can debate whether courts or Congress are more competent to fix copyright. But if the courts give up on Congress, then all is lost, not just for copyright, but for our constitutional democracy as well.”

Fiction #3. Those of us who want the GBS rejected are Luddites, anti-technology, anti-information, and just so 1990’s.
Not so.  Those who think the GBS is the only answer to out-of –print books are the ones who are out of date. Get with the program, chickadees, this is 2010 and you are so 2005.

It’s getting cheaper and cheaper to digitize books, and companies are springing up all over the place which are ready to do that and give copyright holders a much better cut of the profits.  But the reality is that confused copyright holders, baffled by the GBS, won’t realize this until it is too late.

Fiction #4. The Authors Guild is fighting on our behalf
Well, maybe at the beginning.  Now, the AG is part of the problem.  They have become partners with Google, collaborators in the deal.  They have a lot of time, effort and money invested in this, and are now determined to see it through.

The American unions fighting on Canada’s behalf are now the National Writers Union, the American Society of Journalists and Authors, and the Science Fiction Writers Association.  They want the settlement thrown out.  They are the good guys.

The GBS should have been reparation for past copyright infringement, but it turned into an ongoing publishing deal.  And for a number of reasons it creates a de facto monopoly.  This is a threat to a free market in electronic versions of out of print books, and is also a threat to the principles of class-action law.  For those interested in the abstract legal principle and precedent, the principle and the precedent are not that abstract.  An exact analogy in class action law would be Dow Chemical and the Bhopal spill.  If that settlement had functioned the same as the GBS, Dow would still be polluting but the victims would get a cut of the profit.

Fiction #5. Resistance is futile
This attitude is very prevalent.  It is always accompanied by such phrases as let’s be realistic and hold our nose and make a deal with the devil because… well, some people just like to see the world like that.
But the fact is, New Zealand, Ireland, India,  South Africa, all of Continental Europe, protested.  And they are all out of the GBS.  Google scares surprisingly easily.  GBS spokespersons like to claim that the settlement is now restricted to the U.S., Australia, U.K. and Canada for administrative convenience.  But — to put it in the most euphemistic way possible — they are saying that which is not so.  The rest of the world is out because they protested.

If  we all push together, we can get out of this mess.