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Googlebooks re-deal won't let orphans go

Revised pact frees foreign works (UK excepted)

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Google and its fellow parties in the ongoing Google Book Search case have released a revised incarnation of their proposed settlement, as they attempt to win court approval of the controversial pact.

The revised settlement includes several changes designed to appease regulators, public advocates, and Google competitors who've opposed the deal. But Google and the American authors and publishers on the other side of the settlement are still intent on digitizing so-called "orphan works" - the deal's most controversial aspect.

Rather than give up the orphans, the parties have proposed that for up to 10 years, an independent fiduciary will retain all orphan works revenues that would have gone to the rights holder. After five years, 25 per cent of these funds may be used to located the orphan's rights holders. And after 10 years, these funds may be given to literacy-based charities.

But the pact still gives Google the right to digitize and make money from orphaned works - a right no one else would have. "Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand; fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners," said the Open Book Alliance, a group of organization that has vehemently opposed the deal, including Amazon and Microsoft.

"None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest."

Last fall, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over its Book Search project, which seeks to digitize texts inside many of the world's leading research libraries. The Mountain View advertising giant has already scanned at least 10 million titles, many of which are still under copyright.

The pact creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a cut of Google's revenues. But it also gives Google the unique right to scan and sell and post ads against orphan works: books whose right holders have yet to come forward. And although other organizations could negotiate the rights to books in the Registry, the Registry alone would have the power to set prices. Many are concerned the Registry would have no incentive to keep prices down.

International authors and publishers have also objected to the deal, arguing that a vast number of the books scanned by Google would be foreign works - and that these would be bound by the settlement of a civil court case in the US.

For instance, under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), foreign copyright holders needn't register with the US in order to maintain their rights stateside. But under the terms of the original settlement, authors couldn't protect themselves from Google without explicitly registering with Google.

In other words, they would be in the same situation as US rights holders. The Books Rights Registry is an "opt out" creation.

After the US Department of Justice urged a federal court to reject the deal as originally written - citing concerns over class action, copyright, and antitrust law - authors and publishers asked for additional time to revise the pact. And Google did not object.

Federal Judge Denny Chin gave the parties until November 9 to submit a revised deal, but he later granted a second extension until yesterday.

In addition to amending the treatment of orphan revenues, the new settlement only allows orphan works from English-speaking countries: the US, Canada, the United Kingdom, and Australia. "After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices," reads an FAQ on the settlement from the parties involved.

If rights holders in the other foreign countries have registered their copyright with the US, they are still part of the settlement's class.

This English-speaking-world bit will please France and Germany, who formally complained to the EU about the original deal. But that leaves the United Kingdom. They complained too. ®

Update: This story has been updated to show that the independent fiduciary mentioned in the revised settlement will retain the orphan works revenues that would have gone to the rights holder.

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