Posts by Arcadian

Alexander Macgillivray

In addition to the hiring of Smith, the White House named Alexander Macgillivray as deputy US CTO. He has worked as Twitter's head of public policy. Among the planned areas of focus for Macgillivray are the hot-button issues of internet and intellectual property policy as well as privacy...

Before he worked for Twitter, Macgillivray was also at Google, where he was responsible for the notorious Google Book Settlement agreement, which was eventually thrown out by the court. For those who don't remember it, it was an ingenious effort to use class action law to screw authors out of important rights and pre-empt the then nascent market in e-books.

France's 17th-century statesman Cardinal Richelieu famously stated "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged".

This quotation, which exists in various versions, was originally attributed to Richelieu's agent, Jean Martin, Baron de Laubardemont (1590--1653); it was not attributed to the Cardinal himself until the mid-nineteenth century at earliest. Laubardemont is chiefly remembered now as one of the judges who presided over the trial of Urbain Grandier for witchcraft at Loudun in 1634.

Implications

'What the worldwide implications are is not clear. French copyright law does not recognise "fair use", which Google used in its defence. French publishers have always insisted that making a digital copy is still making a copy and therefore should be paid for.'

There are implications for the UK, it seems to me. UK copyright law recognises 'fair dealing', but it is much more narrowly defined than the US 'fair use' exceptions. It would not be legal for Google to digitize whole works without permission in the UK, any more than it is in France.

And the Berne Convention, which guarantees international copyright protection, and which was cited in the French case, also protects UK publications.

Two well-meaning ladies

"English-speaking countries: the US, Canada, the United Kingdom, and Australia ... 'countries with a common legal heritage and similar book industry practices'"

Ah yes: not New Zealand, where the Society of Authors strongly opposed the settlement and lobbied the NZ government till it agreed to look into their concerns.

And not India, where the legal system is also based on English common law, and which is said to be the third largest publisher of books in English in the world (after the US and the UK). India recently made diplomatic representations to the US government to the effect that the Google Book Settlement would encroach on the copyrights of Indian authors and publishers.

And not, interestingly enough, Ireland: another common law jurisdiction.

In the USA there has been, at least, a debate raging ever since the first version of the settlement was announced last year. Two US writers' organisations have come out against the settlement and joined the <a href="http://www.openbookalliance.org/">Open Book Alliance</a> that has been formed to fight it.

I have not seen any of this controversy properly reflected in the information about the Google Book Settlement that has been put out by the three main UK authors' organisations: the Society of Authors, the Writers Guild of Great Britain, and the Authors' Licensing and Collecting Society.

Nor has it been regularly covered by most of the UK news media. (The Register has been one of the few exceptions - along with the Financial Times.)

Many, probably most UK authors are still largely in the dark about the scope and detail of the settlement.

And now we see two prominent UK authors, Margaret Drabble and Maureen Duffy, join the tiny group of 'representative plaintiffs' in the Google Books class action case. Drabble is the Chairman of the UK Society of Authors. Duffy is the Honorary President of the Authors’ Licensing and Collecting Society.

Apart from the USA, the countries that are still in the GBS are those where the authors have not so far put up a strong resistance, and in particular those where the authors' organisations have gone along with the rosy view of the settlement that has been propagated by the US Authors Guild, one of its main instigators (along with the Association of American Publishers and, of course, Google Inc).

If you are a UK author and you don't like the idea of these two well-meaning ladies, without so much as asking you, opting you in to a dubious and highly detrimental quasi-contract, and granting your publishers an interest in rights - digital rights, US rights - that you may never have licensed to them in your contract, it is time to spread the word around and start lobbying the government. Only the government can get us out of this.

@Trouble with copyright...

'Perhaps she should read Lawrence Lessig's Free Culture.'

The thing the Lessig fanboys never mention is that Lessig advocates that all our web access should be intercepted and monitored by an agency set up by the government. This is his answer to the problem of how artists should be paid: the government, he says, should levy a special tax and distribute the proceeds among artists for their support. How much each artist receives is to be determined by the popularity of his or her work, as established by this all-seeing agency.

So at one swoop Lessig would

a) institute an organisation dedicated to spying on everyone's internet use and reporting to the government

b) take away artists' independence and make them rely on government handouts for an income.

Is this what you want to see, Ivor?

Re: re:depends

Greg 10 - in the UK the publisher holds copyright in the typography and layout ('typographical arrangement') of a book for twenty-five years after publication (see Copyright, Designs and Patents Act 1988, 1.1.15). Even if a work goes out of print within that time, and an author reverts the rights to the text, the publisher continues to keep the rights to the typographical arrangement. (And fair enough: a lot of work generally goes into design and typesetting.)

I don't know whether French law on intellectual property has a similar provision relating to the typographical arrangement in an edition. But even if it doesn't, that doesn't necessarily mean that typography and layout are not protected: it is possible they are covered under broad provisions protecting creative works.

@This does not give Google any copyrights

"As for people who don't want Google reprinting their stuff, fine, come forward, Google will *pay* you to tell them to stop using your stuff under this deal. Probably a lot more money than anything considered an orphaned work is worth too."

Sorry Corrine, but you are way off mark.

i) Under the settlement agreement as it currently stands,if Google have already digitized an author's books and they choose to opt in to the settlement the company will pay them some money, yes: $60 a book, approx £36 in UK money. Not exactly a fortune. If they are a non-US author, I understand that to receive the money they will have to have a taxpayer ID from the US government; in order to arrange that they have to obtain an apostille from a notary. I believe that this will cost them at least £70: and obviously there will also be the cost of sending this valuable document to the US by insured airmail letter.

Then if the book is still under license to a publisher, the whole £36 will be paid to the publisher, not the author, and it will be up to the publisher and the author to agree what share the author gets (and imagine who has the power in that situation).

ii) Under the settlement agreement as it stands now, authors of single-authored volumes are permitted to tell Google to stop displaying/selling their books - if they can track down the entries for them in Google's ropy database. Writers in short forms - poems, short stories, essays - whose work appears in multi-authored volumes cannot not do this: they may ask not to have their work displayed, but they cannot stop Google selling it. Maybe you think this doesn't matter? It matters if you are a poet or short story writer.

iii) Your remark about 'orphaned works' is muddled. An 'orphan work' is a work whose copyright owner cannot be traced. No one who owns the rights to a true 'orphan work' is likely to come forward, for the simple reason that they either don't know or can't easily prove what rights they own.

Orphan works are not the same as out-of-print works. The ownership of most out-of-print works is fairly easily established, for those who go through the proper channels. You would be wrong if you assumed that because a book has gone out of print the rights to it aren't likely to be worth very much. It is quite usual for books to go out of print for a while and then be reprinted. And there are various ways in which the rights to an out-of-print book may acquire value: for instance, if it is a non-fiction book on a subject that suddenly becomes topical, or an earlier novel by an author who wins a major literary award, or who writes a best-seller.

@Books not in print

When a book goes out of print, in the majority of cases, the rights revert to the author. In general, authors want to see their out-of-print books made available, provided the deal is a reasonable one. What most of them don't want is to see the emerging market for digital books distorted by a huge corporation which scans their books without asking them (illegal in the UK, and quite possibly in the US, too), invites them to 'claim' their own books on a ropy database riddled with inaccurate data, and whose planned digital editions apparently consist of shoddily reproduced copies of the print pages, and raw OCR output.

@@kindaian

"10 to 15 years should be perfectly adequate. If it's going to make money, it'll either do it in the first year or two, or never."

One of the pains of the Google Book Settlement fracas has been listening to people who know nothing at all about the writing trade confidently spouting total rubbish.

i) Some of the books with the all-time biggest sales have been 'sleepers', gradually building popularity over many years through word of mouth. The Lord of the Rings is a case in point.

ii) It is likely to take at least 10 years for an author to achieve name recognition with the public: at which point his/her early books may finally start to make money

iii) Books can, and often do, go in and out of print over many years, earning their authors further welcome payments with each reprint

And let's say this loudly and clearly: most authors earn only very modest sums from their writing, and those amounts have been falling sharply in recent years. You want, out of ignorance and greed, to slash their incomes still further? Then look forward to a future in which your favourite mid-list writers - the ones who aren't top sellers, but steadily turn out books you enjoy reading - are driven out of full-time writing; maybe stop writing altogether.

Do you want a future in which your choice of new reading matter is confined to books 'by' celebrities, online fanfic, and Wikipedia articles? I assure you, it is a real possibility.

@Re: Then sue Google

"As I vaguely recall, there was a class action suit which the plaintiffs settled on behalf of all US authors. Although people (mostly law fetishists) may regard this as a "neat hack" by Google, it raises all suits of issues about class actions and how people can effectively sign away your rights ostensibly on your behalf, even though you may not know anything about it."

It does indeed. But the settlement has not yet been approved by the judge. And the plaintiffs will be challenged as to whether they really are adequate representatives of the settlement class - among other issues.

@El Reg for sale

"A judge has ruled that third parties can license the work of people they don't legally represent"

He hasn't made his ruling yet.

"Those orphan works are orphans"

Except when they aren't. The 'orphan books' tag is being widely used as propaganda for the settlement: it is implied that it will only affect a lot of old rights whose ownership is uncertain.

The truth is that a lot of the authors, and authors' heirs, who haven't claimed their books yet, or opted out of the settlement, are perfectly easily traced: it is just that Google has declined to go looking for them. (And the settlement notice system is a bad joke: even in the US, let alone outside it.)

These authors of what Google also calls 'unclaimed books' believe that their rights are protected under international copyright law (and let's hope they are). They haven't yet got the message that there are people out there with big plans to help themselves to their work.

@ So sue me #

"All this does is give some protection to Google being sued by the Guild and Association. And if the original publisher/author wasn't a member of either then Google is probably still back in court."

Unfortunately, this is not the case.The agreement purports to bind virtually all authors and publishers worldwide, whether they are members of the Guild or the Association or not, and whether or not they even know about the law-suit: they are all defined as members of the 'settlement class'.

In addition, it gives Google the right to greatly extend the uses it is making of the books it has scanned, with or without the consent of the rights-holders. Consent is to be presumed, if they don't opt out in time (and time is getting short).