GBS: Two Registry Directors to be Europeans

The Financial Times reports:

The company has agreed to have two non-US representatives on the governing board of the registry that will administer the settlement, according to a letter sent to 16 European Union publishers’ representatives at the weekend, a copy of which has been seen by the Financial Times.

This is, of course, a direct response to complaints from European publishing groups about the U.S.-centric nature of the settlement and the Registry. I had heard speculation that there would be an explicit European presence on the Registry’s board, so in a sense, this is just confirmation by the parties of something rumored by others.

I thought this other announcement from the letter was also striking:

A spokesperson for Google on Monday said: “The parties to the Settlement Agreement have sent a letter to several national publisher associations in Europe to clarify that books that are commercially available in Europe will be treated as commercially available under the Settlement. Such books can only be displayed to US users if expressly authorised by rights holders.”

The commercial availability point has been raised, quite strongly, in many of the European filings. Even though the commercial availability test is just a default rule, it’s a default rule with serious consequences for publishers who don’t want their books sold online.

The timing of the letter is clear enough: this is meant to assuage fears in the run-up to today’s European Commission hearing. It’s not clear to me that Google and the plaintiffs are doing themselves any favors with this approach to doling out concessions right on the eve of significant moments of oversight. It sends a signal that if you push them hard enough, they’ll give some ground—but at the same time, the tone is more “grudging favor” and less “olive branch.”

I would like very much to see the letter and to post it at the Public Index. It’s clearly intended to be part of the public debate, and, as such, should be itself available to the public. Any reader who can obtain and forward will incur my gratitude.

The inclusion of European author and publisher directors of the proposed Book Rights Registry was mentioned in last month’s Publishers Weekly Seminar on the GBS, and cited in the Objections I filed Aug.17 on behalf of Ian Franckenstein,son and heir of late author Kay Boyle. If the GBS is approved, this confirms that governance and autonomy of the Registry is a vital issue of broad public concern. See, also Nimmer’s Brief and Objections for Amazon, in which he sets forth the many anti trust consent decrees binding ASCAP and BMI which are the “licensing regime” models for the Registry. The Nimmer, and several other briefs highlight the question of whether the Court will allow the Registry to be bound to favorable and exclusive dealing with Google as opposed to others seeking to exploit the scanned book data base, in contrast to the consent decrees on BAMI and ASCAP mandating them to license all comers on a non-discriminatory pricing basis.

The Financial Times report is unique. So far the NY Times and WSJ have been silent on the GBS this weekend.

I imagine that the U.S. papers are waiting for the deadline tomorrow and for the end of the Labor Day weekend. Whereas, over in the U.K., where the FT is published, they’ve got the EC hearing and it’s a normal business day.

What about the rest of the world? This settlement goes beyond US and European books. I have not yet seen any interest/objections/support from other continents. Am I missing something?

There’s something possibly coming out of Japan — e.g. — but the details are not yet clear.

Other continents? A few examples:

The Japan PEN Club is filing objections, as has the Japanese Publishers Association on Book Distribution (also here). A group of 180 Japanese authors associated with the Japan Visual Copyright Association (JVCA) have opted out. (More analysis of this.)

The Australian Society of Authors has filed a letter with the court. The New Zealand Society of Authors has posted their objections filed with the court: “We urge the Court to reject the Proposed Settlement.”

Leading South African publishing group Media24 “is opposed to the Google Settlement and has in this context submitted formal objections requesting the court that will handle the fairness hearing to reject the settlement, or to decline to certify the class with respect to foreign rights holders.”

I think the only factors that have limited the international opposition have been the lack of notice (and especially of translation) and the assumption by authors outside the USA that their rights couldn’t be compromised by their failure to make claims in a legal case in the USA.

Imagine if every author in the USA had to file an “opt out” notice with a Japanese court, in Japanese, in order not to risk worldwide consequences for their rights.