but the one imposed on Canadian writers by Google Inc. was disconcerting, to say the least.

Since 2004, the search engine giant has quietly gone about scanning millions of books found in American libraries, including thousands by Canadian copyright holders who were never consulted, and did not grant their permission. Having built up this digital treasure trove with a variety of commercial aims in mind, Google agreed to settle a class-action lawsuit for massive copyright infringement brought by the Authors Guild of America, offering to pay $125-million (U.S.) in “thank-you” money, for wont of a better phrase, to publishers and their authors.

A deadline of Sept. 4 was established for all those caught up in the scanning project, however involuntarily. Authors could either “opt in” to the terms of the settlement, or “opt out” – thus retaining the right to sue Google down the road.

Because American copyright law doesn’t clearly distinguish between international works published by a U.S. company and works that pop up in an American library, virtually all of world literature and scholarship has become fair game for these settlement terms. Canadian authors have been left scrambling to protect their intellectual ownership without any sense of the long-term implications.

It isn’t even clear what can be gained from “opting out,” since Google has no legal obligation to remove the books it has already scanned. The company is currently doing so merely as a matter of “good faith.” (American conservative Christopher Buckley wants none of that. “Whenever I hear capitalism proclaiming noble motives, something makes me check my wallet,” he observed recently of the settlement.) “This is a pivotal moment in the history of access to recorded information,” Susan Benton, president of the Urban Libraries Council, wrote in an Aug. 19 letter to U.S. District Judge Denny Chin, who has been tasked with reviewing the deal.

A brief filed to the court by Amazon.com is typical of the slow-dawning sense of alarm being expressed: the settlement terms, Amazon charged, “are the stuff of anti-trust nightmares.”

For one thing, Amazon and all other book sellers and libraries unassociated with Google will be precluded from digitizing out-of-print and orphaned works in the public domain. Moreover, works will be deemed to be orphaned if their authors don’t sign Google’s Books Registry. As the Writer’s Union of Canada points out in its brief to the court: “Authors should not lose control over their works because they fail to sign up in a registry in another country.”

It is unacceptable to be bossed around and held to deadlines in this fashion by foreign interests. Canadians who publish books, including everyone from the leader of the federal Liberals to business people, historians, doctors and poets, deserve more than a meagre opt in/opt out say in the future of their collective intellectual property.

Globe and Mail, Editorial Page, Monday, Sept. 07, 2009