TWUC rejects amended Google settlement; ACP and CPC reserve judgment

The newly amended Google Book Search settlement, which was filed with a U.S. court late last Friday night, is meeting with an array of responses from the Canadian publishing industry. The Association of Canadian Publishers and the Canadian Publishers’ Council are both taking a wait-and-see approach, preferring to consult with their members before taking any public position. The Writers’ Union of Canada, meanwhile, has decided not to endorse the amended settlement.

The modified agreement, meant to mollify the U.S. Department of Justice and other vocal critics, is much more limited in scope than the original in that it excludes foreign-language works and applies only to books published in Canada, Australia, the U.S., and the U.K.

In a letter sent to members on Monday, TWUC chair Erna Paris noted that though the revised settlement addresses many of the association’s concerns, it does not adequately deal with issues surrounding so-called “orphan works” – i.e., works for which rightsholders have not come forward – or issues surrounding library use.

“Public libraries and non-profit higher educational institutions should pay a licensing fee to have terminals available for public access, even if they choose to provide free access to their library patrons on such terminals,” wrote Paris. “These library patrons will have to pay for each page that they print out from such a terminal, but the lack of access fees for their institution could create expectations in Canada that would erode copyright protections here.”

According to Toronto lawyer Grace Westcott, who has been consulting with the ACP and the CPC on matters pertaining to Google, there is a lot in the amended settlement for Canadians to be pleased about. The most important change, she says, is to the so-called “commercial availability” provisions. In the previous wording of the settlement, Google was permitted to display and sell any titles “not commercially available” in the U.S., which would, of course, include a great number of Canadian titles. Now, however, the wording has been changed to state that a book is considered commercially available if it is offered for sale new to a U.S. buyer from anywhere in the world. “That was the big, contentious issue that needed to be dealt with,” says Westcott. “In ‘Settlement 1.0,’ Canadians were reduced to second-class citizens.”

Another significant change pertains to the Book Rights Registry, a yet-to-be-created, independent body that will monitor Google’s activities and make sure everything is done according to the agreement. In the old settlement, the registry was to consist solely of Americans. Now, however, there will be at least two Canadians involved – one from the publishing sphere, and the other from the creators' sphere.

Westcott also notes a potential benefit that may arise from the decision to make the agreement apply only to the U.S., the U.K., Canada, and Australia. Now that the pool of countries is much smaller, explains Westcott, the $45 million that Google is legally obliged to disburse to rightsholders to compensate for books scanned prior to May 5, 2009, could go a lot further, meaning that rightsholders could potentially receive a lot more than the expected $60 per title.