The long-awaited Amended Settlement Agreement (ASA) was filed yesterday. The relevant documents (including the new version of the settlement and a summery of the main changes) are available here. As someone who was looking into the international law aspects of the settlement recently, one of the first places for me to look was the new definition to a “Book”, which now reads as follows:
1.19 “Book” means a written or printed work that as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office, and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries.
The crux hides in subsection (2)(x)-(y). According to the old definition, non-U.S. works were included in the settlement so long as they were published or made available for public access with authorization on or before January 5, 2009. That definition included virtually all non—registered international works published anywhere, legal copies of which were available in the U.S. as of that date.
The new definition does two things: First, it requires registration with the U.S. Copyright Office also with regard to international works. Alternatively, non-registered, non-U.S. works published only in Canada, the U.K. and Australia remain in the settlement.
The summery of changes explains this move as follows:
As revised, the settlement will only include books that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada. After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include only these countries, which share a common legal heritage and similar book industry practices. British, Australian, and Canadian rightsholders are joining the case as named plaintiffs and will also be represented on the Board of the Book Rights Registry.
Now this is a major change that would significantly reduce the repertoire of works that the planned access services would be able to offer. I am not sure that this was the principal aim of most U.S. objectors to the settlement. I also think that international copyright law does not obligate the parties (or even the court) to exclude foreign works in this way. It was rather a policy-oriented maneuver intended to remove political pressures coming from abroad, which U.S. objectors have been effectively using as ammunition against the settlement.
Overall, I expect that many U.S. objectors to the settlement will not be all that satisfied with the scope of the revisions. What was taken out are the absolutely “no way” provisions, for instance, the direct conflict of interest between active rightsholders and owners of orphan works in the distribution of monies through the Registry, or the “most favored nation” provision, which would have secured to Google the best conditions to be reached in the future between the Registry and other service provides competing with Google.
In contrast to U.S. objectors, for some people in Europe (especially major publishers) the revised definition of Books is good news. Yet the dream and vision of having access to the world’s cultural heritage through Google’s digitization initiative will have to wait. The litigation in the U.S. certainly has mobilized the EC to set up an agenda for copyright reform that would focus also on digitization of books and the creation of digital libraries. I am all anticipation to see how and when Europe catches up and how many more position and policy papers would have needed to be written and debated until that day comes.
This is obviously not the end of the saga. A date for the fairness hearing should soon be fixed, and I assume that in the meantime the harshest critics of the settlement will sharpen their arguments and tailor them to attack the new arrangement of the ASA. I expect the critique to become more pointed, however (privacy issues?), now that Continental Europe and other countries (like China?) that do not “share a common legal heritage and similar book industry practices” with the U.S. are out. Now, when the danger of “diplomatic stress” with major trade partners of the U.S. is removed (is it indeed? After all, registered foreign works are in the settlement even without the express wish of their rightsholders unless they timely opt-out), the road ahead is wide open. Or is it not? Stay tuned...