Google Books limited to “common legal heritage”

On November 13, 2009, the parties in the Google Book litigation filed an Amended Settlement Agreement and a motion for preliminary approval of the amended settlement with the District Court. The amended agreement is available here. Elinor Mills at CNET has a good summary of the revised agreement.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “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.” To sweeten the deal for Australia, Canada and the UK, their publishers and authors will have their own representation on the board of the rights registry which oversees the settlement.

The Financial Times reports that 95 per cent of all foreign works will no longer be included in Google’s digital book archive. Google will have to find a way of working with international rightsholder organizations to broaden the reach of their database.

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

The agreement does not do anything to extend the orphan works license to Google’s competitors, that will still require legislative intervention. However the most favored nation clause which diminished the Registry’s incentives to deal with third parties if and when that legislation is forthcoming has been deleted from the agreement.

There are other significant changes worth mentioning, but they will have to wait for another day.

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