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.]”

Perhaps 50 or so writers attended. We watched on the  blackboard how the publisher’s revenue of a hypothetical book selling for $10, displayed at Chapters, is dropped into the Big Box woodchipper. First the Chapters/Indigo discount of 45% is applied. Then a further charge of $1 per book is levied for strategic in-store placement, reducing the revenue to $4.50. The publisher must now grind off his/her costs.  Brinnggg. The book is half the size it was.

We writers watched, mesmerised, as our own little crumb of a royalty chip flicked off somewhere below the bottom line of the chalkboard. (We didn’t actually arrive at this number but doing the math was easy. Less than 50 cents if you’re talking Net. Less than $1 if you’re talking the now-apparently-normal 7% royalty.)

Okay, admittedly,  it’s hard to make traditional publishing pay. We know that. We’ve known that forever. Big Box stores have big rents, so must move a lot of books or yoga mats or candles to cover this.

We didn’t bother unpacking the topic of consignment. It was better to focus on the percentage of “sell-throughs” where a book walks out the door and it doesn’t come home again. The way most stores sell things.

I could feel the glumness descend as the writers, twisting their caps in their laps, pondered how they might make themselves even smaller at the Table of Book Publishing. They could see how much trouble they were costing everyone and how little they brought back home. But if they stayed well-behaved and charming and promised not to ask for too much or make a fuss if their little share was made just a little smaller …might they keep a bit of e-rights for themselves!

What! Asking for a second bowl of gruel!

I’m being a little more snarky than I truly feel most days towards publishers. I do feel their pain and negotiating with Chapters can’t be any sort of fun at all.  Must be hard to think over the whine of that wood chipper.

What to do?

Kick over the old and get on with the new. If Chapters is strangling the publishing market then the market must swarm elsewhere. The Net is the Agora. It is bigger than the biggest Box Store and its customers are global. Writers and editors and Web Managers and Marketers can team up to work around the Chapters monster, encourage InstaBook machine depots, print On-Demand books, perfect the formatting of ebooks so that they can be downloaded onto a reader’s bridgework if that’s the preference. It can be done. It is already being done.

Writers of the e-world Unite! We have nothing to lose but the Chains.