Google Library Project Settlement Agreement

On 28 October 2008, the Authors Guild, the Association of

American Publishers and Google announced that they had reached a

potentially groundbreaking Settlement dealing with Google's

much-publicised 'Library Project', which involved Google

digitizing publications without permission from the rights holders.

Although the Settlement only covers the US, it will, if adopted by

the US courts, have a significant impact upon all UK authors and

publishers who have a US copyright interest.

Background

In 2004, Google announced that it had entered into agreements

with several US libraries to digitize books and written materials

held in those libraries' collections. To date, Google is

reported to have already digitized more than seven million books,

including millions of books that are still in copyright in the

United States. American Google users are able to search

Google's digital database and view "snippets" from

the digitised materials.

In 2005, the Authors Guild and separately various publishers

filed lawsuits objecting to Google's digitalisation of

copyright content without the express consent of the rights

holders. Following three years of litigation, the Settlement

reached on 28 October 2008 aims to resolve the issue by allowing

Google to continue the Library Project whilst giving rights holders

the right to opt out of the scheme or to receive compensation and

participate in revenues earned going forwards.

What is the current status of the Settlement?

As the case is a class action, court approval of the Settlement

is required before it becomes effective. At the time of writing,

the Settlement is still subject to the approval of the US courts in

June 2009.

Who is affected by the Settlement?

If the Settlement is approved by the US courts, it will bind the

parties to the Author's Guild action. (The separate lawsuit

brought by five publishers against Google in respect of identical

issues to those settled in this action will also be dismissed.)

The key thing to note is that, as a class action, the Settlement

will also affect everyone who is a member of the "class"

even though they had not been a party to a claim against

Google.

The "class" consists of all persons (and their heirs,

successors and assigns) who own a "US copyright interest"

in a "Book" or "Insert" as at 5 January 2009.

All persons in this class will be bound by the Settlement unless

such persons opt out of the Settlement in accordance with a defined

opt-out procedure.

A person will own a "US copyright interest" in all

Books or Inserts in which it owns (or has an exclusive licence to)

copyright protected by US law. A US copyright interest will apply

to a publication where it has either been published in the US; or

has been published in the UK (or another Berne Convention country),

or another country which has copyright relations with the US.

In broad general terms, a "Book" is defined as a

written or printed work which (as at 5 January 2009):

has been published or distributed to the public (with the

authority of the US copyright owner); and

has been registered with the US Copyright Office

(unless the work was first published outside the US in

which case registration is not required);

is subject to a US copyright interest; and

is implicated by one of the categories of use covered by the

Settlement.

"Insert" is defined similarly to a Book save that (in

broad general terms) an Insert refers to particular material (such

as forewords, quotations, tables and so on) which is contained in a

Book.

Will UK-based authors and publishers be affected by...