Google: goodwill or grasp?

GOOGLE's settlement with the US Authors' Guild over the web corporation's unauthorised digitising of whole libraries of books may technically affect only the authors of the books involved. But colleagues representing musicians, for example, are alarmed at its potential to set a pattern for the whole of publishing - in which authors and performers, from dancers to photographers, rely on the corporations goodwill to get paid for all use of our work, beyond up-front fees for its first appearance.

And, unsurprisingly, the settlement is entering stormy waters.

The proposed settlement includes all text authors (and publishers) in the countries that are members of the Berne Convention on authors' rights. The UK and Ireland do belong to Berne; if you live and work in Afghanistan, Angola or a handful of other countries, check. It offers them US$60 compensation for each book copied without permission, and 30 to 40 per cent of income from future advertising alongside scanned books, from library licence fees and from eventual pay-per-view access to books.

The proposed settlement does not offer any money to illustrators or photographers whose work appears in the books (unless they're the author of an entire book, or its an illustrated children's book). Images are supposed to be stripped out of the versions made available online, except for new book previews put online with publishers' agreement - for the moment. The Freelance is checking and would be interested to receive examples of this stripping-out not happening.

But how would the revenue split work? People in the music licensing world have issues with similar proposals to compensate musicians for work appearing on YouTube - owned by Google. This went ahead and distributed copyright material without permission and then offered in settlement a share of advertising revenue. But how much? As a pointer, the Freelance is told that one of the three songwriters of the Rick Astley work that (for perverse reasons too complicated to explain here) was the most-viewed song on YouTube last year received a princely US$12.

One issue is whether Google is prepared to be transparent about accounting for this revenue share. The European Federation of Journalists' annual conference in Bulgaria in May voted to campaign for transparency in all such deals - but that's a long-term project.

On 10 March Google started taking UK musicians' videos off YouTube, having refused a proposal on compensation from the music collecting society the Performing Rights Society (PRS). Somehow, this was portrayed in many places as musicians being unreasonable.

Because the settlement is proposed under US law following a "class action" lawsuit, you are deemed to be part of it unless you "opt out" of the legal process.

If you "opt out", US law presumes you will take Google on, on your own or by building your own coalition. The Freelance has not discovered any moves for such an "alternative settlement", nor the millions needed to launch our own.

As a German colleague put it, it seems "the way to challenge it is to stay in". The German writers' collecting society VG Wort is particularly active in encouraging members to register their works as part of the legal settlement - and then negotiating future terms on their behalf. The NUJ is meeting with its UK equivalent, the Authors' Licensing and Collecting Society (ALCS) about applying similarly firm tactics.

If you stay in, your deadlines for informing the court about books that may be involved is 5 January 2010 and for saying that you do not want them to be available online is 5 April 2011 (subject to your contract with your publisher).

These dates may change. The Freelance predicts - on a finger-in-the-wind basis, so far - that legal challenges to the fairness of the settlement will be presented to the next court hearing, which opens in New York on 7 October. The deadline for opting out or registering an objection is 4 September.

And Google faces other challenges - especially a raft of investigations as a possible monopoly. These, too, could affect the settlement. Don't spend the $60 yet! See www.londonfreelance.org/fl/0906goog.html

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