News & Developments

In an endeavour to assist NZ rightsholders in deciding what course of action to take with regard to the

Google Settlement, we have sought legal direction. The following is a result of this review.

Google has entered into a Settlement Agreement with a number of publishers due to alleged copyright

infringement by Google. The alleged infringement comprised Google’s actions in digitising and

publishing online a number of books and book inserts. The books and inserts copied by Google were

made available by a number of participating libraries. This was to create the online database “Google

Book Search”” (see: http://books.google.co.nz/).

To be eligible to be part of the settlement, authors and/or publishers must have a “U.S. copyright

interest” in the following works:

before 5 January 2009:

the authorisation of the work’s U.S. copyright owner(s); and

under the U.S. Copyright Act, in which case such registration is not required); and

licence) implicated by use authorised by the settlement.

periodicals (e.g. newspapers, magazines or journals);

personal papers (e.g. unpublished diaries or bundles of notes or letters);

sheet music and other works that are used primarily for the playing of music;

U.S. Copyright Act; and

(b) “Insert”

(i) text, such as forewords, afterwords, prologues, epilogues, poems, quotations, letters, textual

excepts from other books, periodicals or other works, or song lyrics; or

(ii) tables, charts, graphs, musical notation (i.e. notes on a staff or tablature); or

(iii) children’s book illustrations; and

January 2009; and

someone other than a rights holder of a book’s “Principal Work”; and

5 January 2009 unless the insert or work is not a United States work under the U.S. Copyright

Act, in which case such registration is not required.

and paintings; and

1.72, Notice: page 8).

New Zealand but was later distributed in the United States, the work will be protected under the U.S.

Copyright Act (Settlement Agreement cl 1.38, Notice: page 5).

It is suggested interested publishers or authors should review the long form of the summary of the

Settlement Agreement put out by the United States District Court for the Southern District of New

York.

The Settlement Agreement provided that a searchable database of books would be created by Google

for publishers and authors to search to see whether or not the books have been digitised. Obviously

this is central to the decision whether to opt in or out. However, to prevent persons from submitting

fraudulent claims for the cash payment for digitised books, no such list will be provided.

publishers to access a “search for books” option for authors and publishers to review whether their

books have been digitised by Google. If there is a large list of titles to search for, authors and

publishers may also upload a spreadsheet of books from the website. This will be located under the

link “tools for finding and claiming books and inserts” page. In this page select the “upload a file of

books” and click continue.

The Notice states that there would be some books covered by the Settlement Agreement that are not

The Notice provides that where a publisher decides to opt out of the settlement, the publisher retains

the right to file its own law suit or join another law suit against Google regarding the claims set out in

the current law suit (Notice: page 25).

No reason needs to be stated for opting out. The requirement on the publisher to opt out is so that

Google can know which books and/or inserts have been removed. Authors and publishers must

identify all of the imprints under which they publish or have published, and importantly the Books in

which they hold a “US copyright interest” (Notice: page 25).

Where a publisher or author opts out of the settlement, they would not be entitled to the payments

provided for in the settlement but rather would retain a separate right of action against Google.

Authors and publishers may opt into the Settlement Agreement to obtain the benefits set out under it.

These benefits include compensation for the infringement of copyright for books published prior to 5

January 2009 (and digitised prior to 5 May 2009).

Page 10 of the Notice sets out the payment to be made for books that have already been digitised.

The payment for books already digitised arises as a result of Google infringing the copyright of authors

and publishers by digitising the book without authorisation from the copyright owner. This payment is

in compensation for that act.

Under the Settlement Agreement, an author or publisher is entitled to at least $USD60 per Principal

Work (Book) (cl 1.111), $USD15 per Entire Insert (cl 1.50) and $USD5 per Partial Insert (cl 1.100).

The Settlement Agreement provides for only one cash payment for the same content that is digitised

(e.g. one payment if both the soft and hard copy editions of a book is digitised) (cl 2.1(b), 5.1).

Where they opt into the agreement publishers and authors can elect what use may be made of their

works by Google (cl 3.5, Notice: pages 11-16).

Where a book is deemed to be “in-print”, Google may not make any display use of the book unless

authorised by the author or publisher (cl 3.2, 3.4, 3.5). The Settlement Agreement provides a process

for the classification of a work as being “in print” or “out of print” (cl 3.2(d), Notice: pages 12 and 13).

Where the display is authorised, the author and publisher is entitled to earn revenue from the use of

the book by Google. (Article IV sets the economic terms for the Display Use of books and inserts)

The various display uses which can be made of a book are as follows (Notice: page 14):

(1) Access uses (cl 1.1):

(a) Institutional subscriptions (cl 1.74) - allowing educational, Government and corporate

institutions to purchase time-limited subscriptions;

(b) Consumer purchases (cl 1.32) - allowing individuals to purchase the right to access the

books online. Right holders (i.e. publishers and authors) will have two options for setting the

sale price of their books. Either they can set the price themselves or they can allow Google to

set the price based on a multi-factor formula designed to maximise revenues for the sale of

the book and set out in the contract;

(c) Public access (cl 1.115) at libraries and elsewhere which will provide a free public access

service through a computer terminal at each public library located in the U.S.;

(d) Other potential commercial uses as created from time to time. These may include

consumer subscription, print on demand books, custom publishing, PDF downloads and so

forth.

(2) Preview use (cl 1.106):

This would allow a user to view up to 20% of a book before making a purchase decision. The

user would not however be able to copy and paste or annotate or print any pages from the

book.

(3) Snippet displays:

This will allow a user to review lines from a book.

(4) Display bibliographic pages allowing Google to display a user’s book title page, copyright

page, table of contents and index.

At any time a rights holder may restrict the types of uses that a book may be put to (cl 3.2(e)(i)).

Where a book or insert is authorised to appear on the preview use page, snippet page, bibliographical

page, and where search results are allowed, rights holders of books will earn 63% of the revenues

from advertisements displayed alongside a book (Notice: page 16).

The settlement agreement provides that all out of print books are automatically included in all display

uses set out above. However, rights holders can challenge the determination (cl 3.2(d)) and can make

decisions to remove, exclude, and set the pricing of any out of print books as follows:

(a) For books that are “works-for-hire” only i.e. were commissioned, the publisher can

apply for removal, exclusion or set price;

(b) For books which have reverted to an author only, the author can apply for removal, exclusion

and set price; and

(c) For unreverted books either the author or publisher can remove or exclude the book and make

pricing decisions based on a “good cause”. An author or publisher may dispute whether the

book is in fact out of print or not. This can be by way of evidence (such as contracts, royalty

statements, trade announcements or affidavit) sufficient to establish whether or not the book

meets the tests for being in print or out of print (Notice: page 22).

published and distributed in the US.

New Zealand authors and publishers that have a “US copyright interests” in a “Book” or “Insert” can

either opt in or out of the Settlement Agreement. If opting in, the author or publisher will be entitled to

very modest payments for the past breach by Google of digitising the work without authority and will

be able to control certain future activities in the US and receive an income stream from the Book’s or

Insert’s Display Use.

To decide whether to opt in or out, authors and publishers need to visit the Google Book search

settlement page and follow the procedures highlighted in 2 above.

Kathy (Sheat) Moore

Chief Executive Officer

Copyright Licensing Ltd

(09) 486 6250GOOGLE SETTLEMENT FOR NZ RIGHTSHOLDERS: LEGAL REVIEW
In an endeavour to assist NZ rightsholders in deciding what course of action to take with regard to the
Google Settlement, we have sought legal direction. The following is a result of this review.
1. Settlement Agreement
Google has entered into a Settlement Agreement with a number of publishers due to alleged copyright
infringement by Google. The alleged infringement comprised Google's actions in digitising and
publishing online a number of books and book inserts. The books and inserts copied by Google were
made available by a number of participating libraries. This was to create the online database "Google
Book Search"" (see: http://books.google.co.nz/).
To be eligible to be part of the settlement, authors and/or publishers must have a "U.S. copyright
interest" in the following works:
(a) "Book" : a written or printed work on sheets of paper bound together in hard copy form that, on or
before 5 January 2009:

was published or distributed to the public or made available for public access in the US under
the authorisation of the work's U.S. copyright owner(s); and

was registered with the U.S. Copyright Office, (unless the work is not a United States work
under the U.S. Copyright Act, in which case such registration is not required); and

is subject to a U.S. Copyright interest (either through ownership, joint ownership or an exclusive
licence) implicated by use authorised by the settlement.
EXCLUDED from the definition of "book" are the following:

periodicals (e.g. newspapers, magazines or journals);

personal papers (e.g. unpublished diaries or bundles of notes or letters);

sheet music and other works that are used primarily for the playing of music;

public domain works (out of copyright), meaning works that are in the public domain under the
U.S. Copyright Act; and

Government works (see: Settlement Agreement cl 1.16, Notice: page 7).
(b) "Insert"

consists either of:
(i) text, such as forewords, afterwords, prologues, epilogues, poems, quotations, letters, textual
excepts from other books, periodicals or other works, or song lyrics; or
(ii) tables, charts, graphs, musical notation (i.e. notes on a staff or tablature); or
(iii) children's book illustrations; and

is contained in a Book, Government work or public domain work published on or before 5
January 2009; and

is protected by U.S. Copyright, where the U.S. Copyright interest in the Insert is held by
someone other than a rights holder of a book's "Principal Work"; and

is registered, either alone or as part of another work, with the U.S. Copyright Office on or before
5 January 2009 unless the insert or work is not a United States work under the U.S. Copyright
Act, in which case such registration is not required.
EXCLUDED from the definition of "Insert" are:

pictorial works, such as photographs, illustrations (other than children's book illustrations), maps
and paintings; and

Works that are in the public domain under the U.S. Copyright Act (Settlement Agreement cl
1.72, Notice: page 8).
New Zealand authors and publishers will fall within the definition of "U.S. Copyright interests"
where they own (jointly or exclusively) or have an exclusive licence to a copyright work that
has been published or distributed in the U.S. Accordingly, where a book or insert was published in
New Zealand but was later distributed in the United States, the work will be protected under the U.S.
Copyright Act (Settlement Agreement cl 1.38, Notice: page 5).
It is suggested interested publishers or authors should review the long form of the summary of the
Settlement Agreement put out by the United States District Court for the Southern District of New
York.
2. Opting Out (5 May 2009)
The Settlement Agreement provided that a searchable database of books would be created by Google
for publishers and authors to search to see whether or not the books have been digitised. Obviously
this is central to the decision whether to opt in or out. However, to prevent persons from submitting
fraudulent claims for the cash payment for digitised books, no such list will be provided.
To locate whether a Book and/or Insert has been digitised by Google, authors and publishers
will first need to register and set up a user name and password at the Google Book Search
settlement page (see: http://www.googlebooksettlement.com). This will allow authors and
publishers to access a "search for books" option for authors and publishers to review whether their
books have been digitised by Google. If there is a large list of titles to search for, authors and
publishers may also upload a spreadsheet of books from the website. This will be located under the
link "tools for finding and claiming books and inserts" page. In this page select the "upload a file of
books" and click continue.
The Notice states that there would be some books covered by the Settlement Agreement that are not
provided in the list. The Notice suggests that even if a book is not on the list, an author or
publisher should consider themselves to be a class member if it owns a "US copyright
interest" in a book published on or before 5 January 2009.
The Notice provides that where a publisher decides to opt out of the settlement, the publisher retains
the right to file its own law suit or join another law suit against Google regarding the claims set out in
the current law suit (Notice: page 25).
To opt out of a settlement, the publisher or author needs to do one of the following:
(a) Go online at "http://www.googlebooksettlement.com" and follow the instructions to opt
out on or before 5 May 2009; or
(b) Send written notice by first class mail, postage pre-paid, on or before 5 May 2009 to
the Settlement Administrator at "Google Book Search Settlement Administrator, c/o
Rust Consulting, PO Box 9364, Minneapolis, MN 55440-9364, United States of America.
No reason needs to be stated for opting out. The requirement on the publisher to opt out is so that
Google can know which books and/or inserts have been removed. Authors and publishers must
identify all of the imprints under which they publish or have published, and importantly the Books in
which they hold a "US copyright interest" (Notice: page 25).
Where a publisher or author opts out of the settlement, they would not be entitled to the payments
provided for in the settlement but rather would retain a separate right of action against Google.
3. Opting in (5 January 2010)
Authors and publishers may opt into the Settlement Agreement to obtain the benefits set out under it.
These benefits include compensation for the infringement of copyright for books published prior to 5
January 2009 (and digitised prior to 5 May 2009).
Page 10 of the Notice sets out the payment to be made for books that have already been digitised.
The payment for books already digitised arises as a result of Google infringing the copyright of authors
and publishers by digitising the book without authorisation from the copyright owner. This payment is
in compensation for that act.
Under the Settlement Agreement, an author or publisher is entitled to at least $USD60 per Principal
Work (Book) (cl 1.111), $USD15 per Entire Insert (cl 1.50) and $USD5 per Partial Insert (cl 1.100).
The Settlement Agreement provides for only one cash payment for the same content that is digitised
(e.g. one payment if both the soft and hard copy editions of a book is digitised) (cl 2.1(b), 5.1).
Where they opt into the agreement publishers and authors can elect what use may be made of their
works by Google (cl 3.5, Notice: pages 11-16).
In-print books (commercially available)
Where a book is deemed to be "in-print", Google may not make any display use of the book unless
authorised by the author or publisher (cl 3.2, 3.4, 3.5). The Settlement Agreement provides a process
for the classification of a work as being "in print" or "out of print" (cl 3.2(d), Notice: pages 12 and 13).
Where the display is authorised, the author and publisher is entitled to earn revenue from the use of
the book by Google. (Article IV sets the economic terms for the Display Use of books and inserts)
The various display uses which can be made of a book are as follows (Notice: page 14):
(1) Access uses (cl 1.1):
(a) Institutional subscriptions (cl 1.74) - allowing educational, Government and corporate
institutions to purchase time-limited subscriptions;
(b) Consumer purchases (cl 1.32) - allowing individuals to purchase the right to access the
books online. Right holders (i.e. publishers and authors) will have two options for setting the
sale price of their books. Either they can set the price themselves or they can allow Google to
set the price based on a multi-factor formula designed to maximise revenues for the sale of
the book and set out in the contract;
(c) Public access (cl 1.115) at libraries and elsewhere which will provide a free public access
service through a computer terminal at each public library located in the U.S.;
(d) Other potential commercial uses as created from time to time. These may include
consumer subscription, print on demand books, custom publishing, PDF downloads and so
forth.
(2) Preview use (cl 1.106):
This would allow a user to view up to 20% of a book before making a purchase decision. The
user would not however be able to copy and paste or annotate or print any pages from the
book.
(3) Snippet displays:
This will allow a user to review lines from a book.
(4) Display bibliographic pages allowing Google to display a user's book title page, copyright
page, table of contents and index.
At any time a rights holder may restrict the types of uses that a book may be put to (cl 3.2(e)(i)).
Where a book or insert is authorised to appear on the preview use page, snippet page, bibliographical
page, and where search results are allowed, rights holders of books will earn 63% of the revenues
from advertisements displayed alongside a book (Notice: page 16).
Out of print books (non-commercially available books)
The settlement agreement provides that all out of print books are automatically included in all display
uses set out above. However, rights holders can challenge the determination (cl 3.2(d)) and can make
decisions to remove, exclude, and set the pricing of any out of print books as follows:
(a) For books that are "works-for-hire" only i.e. were commissioned, the publisher can
apply for removal, exclusion or set price;
(b) For books which have reverted to an author only, the author can apply for removal, exclusion
and set price; and
(c) For unreverted books either the author or publisher can remove or exclude the book and make
pricing decisions based on a "good cause". An author or publisher may dispute whether the
book is in fact out of print or not. This can be by way of evidence (such as contracts, royalty
statements, trade announcements or affidavit) sufficient to establish whether or not the book
meets the tests for being in print or out of print (Notice: page 22).
Conclusion:
The Google Settlement Agreement covers only those works in which New Zealand authors and
publishers have a US copyright interest. That interest will only arise when a work has been
published and distributed in the US. (See FAQ 10).
New Zealand authors and publishers that have a "US copyright interests" in a "Book" or "Insert" can
either opt in or out of the Settlement Agreement. If opting in, the author or publisher will be entitled to
very modest payments for the past breach by Google of digitising the work without authority and will
be able to control certain future activities in the US and receive an income stream from the Book's or
Insert's Display Use.
To decide whether to opt in or out, authors and publishers need to visit the Google Book search
settlement page and follow the procedures highlighted in 2 above.
Kathy (Sheat) Moore
Chief Executive Officer
Copyright Licensing Ltd
ksheat@copyright.co.nz
(09) 486 6250