GBS: A Discovery About Discovery


From the declaration of Paul Aiken in support of the motion for approval, paragraph 32:

… Under some older contracts, according to counsel for the Author Sub-Class (who had access to tens of thousands of book contracts through discovery that were not available to staff of the Authors Guild), authors had, however, granted “storage and retrieval” rights to publishers. Counsel also advised me from their review of such contracts that in the late 1980s many of the major publishing houses’ form contracts began to include electronic rights grants to the publisher.


I don’t exactly call reprinting a book as an e-book or POD book “storage and retrieval.” Anyway, how many of these older contracts had that clause?


By the way, this illustrates one of the major problems with the Settlement: That it declares the right to override all individual contracts. For example, when I was a journalist, some other journalists signed away all rights to their articles. Just because that is the way their contracts were structured (and perhaps they were paid a great deal more than I was paid for first serial rights only), does not mean I should be bound by their contracts.

I’d also question whether “storage and retrieval” in these early contracts was meant to be (a) transferable to other parties for purposes other than facilitating reprinting and revision (b) apply to files not kept in the publisher’s possession, but obtained from third parties such as Google or (c) extend beyond the time the rights reverted to the author, therefore the publisher would no longer need the files to reprint the book.


This point sent me scrambling for my 1985 contract with Penguin Book (NZ) Ltd - which was probably the standard contract for Penguin Books worldwide at the time. I signed this contract on the advice of my agent. I was young then. It was my first book. I did not know any better. And this was back in the days before authors delivered their work on disc. This ms went to the publisher in hardcopy. All the clauses relating to publication refer to hardcover and paperback editions. When this contract expired, all the rights reverted to me. The relevant section - Subsidiary Rights - states:

The Proprietor (that’s me) hereby grants to the Publishers exclusive licences of the subsidiary rights listed below within the territory covered by and during the term of this agreement, and the Publishers undertake to pay the Proprietor the following percentages of the sums received by the Publishers in respect of such rights:

(a) to (j) [serial rights, dramatic & film rights, TV & sound broadcasting rights; translation rights; book club rights; anthology & quotation rights; digest rights; single issue rights - no mention of electronic rights there]

……

(k) the right to use the Work in information storage and retrieval systems, whether through mechanical or electronic means not known or hereafter invented, including but not limited to sound recordings, programmes for machine teaching, film strips, video software, ephemeral screen flashing or reproduction thereof, whether by printout, photo reproduction or photocopy, including punch cards, microfilm, magnetic tape or like processes attaining to similar results: 50%

….

(l) to (n) [strip cartoon rights, merchandising rights; reprints under licence (hard cover & paperback) - no electronic rights in those sections either]

No other mention of electronic rights in the contract.


Tens of thousands isn’t many when you consider that Google has scanned 12 million books.

As author-publisher contracts are usually confidential and are not publicly published, I imagine the counsel looked at the contracts of the representative plaintiffs for the publisher sub-class. That’s a pretty small subsection of all contracts involved with the settlement and, as most publishers have a standard contract, it would have wrongly given the impression that most contracts are much the same.


(K) does not look good to me. I’m not a lawyer but I think it would cover e-rights. But then there is “during the term of this agreement.”

Usually the rights in a contract at that time reverted to the author at some point, though the author had to claim the reversion. The publisher did not get the various sub rights in perpetuity, even if they were exclusive before the rights reverted. In other words, that was 20 years ago, so have your rights for that book reverted to you? In that case your publisher can hardly snatch them back, any more than the other sub rights in your contract.

Frankly, I am finding the Settlement a brain strain. Therefore, regarding these older contracts, how does the Settlement deal with not uncommon situations such as publisher A publishes the book first, then rights revert to author, author then goes to publisher B, then does an updated edition with publisher C, rights revert from publisher C and the author quits trying to sell the book from then on. But author didn’t license e-rights in perpetuity to any of those publishers, although perhaps they were mentioned in one or more contracts, not necesarily with the same payment percentage.

So what, now all three publishers dive for the e-rights to the book under the terms of the Settlement? I assume Google relies on its arbitration board to decide which publisher to donate the rights to?

This is truly horrible. It’s like Google is setting up a worldwide, national-government-controlling business to entirely rewrite copyright laws to give away all authors’ works to Google, for Google to then license to publishers and other third parties.


electronic means not known or hereafter invented

seems to cover: life, the universe, (with added thanks for all the fish)

James, are clauses like this a signing away of common law rights? not legal?


This language is actually similar to language in the U.S. Copyright. Here’s section 102:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Similar language appears in section 101, as well.


James,

But her publishing contract, like most others, is probably for a fixed period; probably until rights revert to her. That contract is 25 years old. Therefore, e-books may have been invented since then. But it is likely that her publisher, as with many other older books, no longer has the legal right to exploit any of the sub-rights licensed only for that fixed period.

Fran


Hence the ‘problem’ with the so called ‘orphan’ works?


There is no “orphan works” problem. Just a bunch of search engine companies (Microsoft and Yahoo as well as Google) who want to use books without bothering to locate the copyright owners or pay them. And large publishers who want to seize rights either not in their contracts with those authors, rights that already reverted from them to the authors, or probably, in the case of the Settlement, books they never published to begin with.

The climate is basically, you’d better not get out of your car (that is, let your books go out of print) in this neighborhood (the US and now the UK), or someone will take it, use it for their own massive financial gain, and claim it is all for the public good.

John: See Gillian’s blog about the UK’s desire to impose something like an “orphan works” act and “book registry.” She wondered why the British government did not protest the Google Settlement: She found out. I think it would be a very, very good idea for you and other Australian writers to investigate what the Australian government may be planning along these lines, and for Canadian writers to investigate what the Canadian governement may be planning.


Yes. The rights under that contract have reverted to me. I have a written statement from the publisher to that effect.


Then they cannot legally come back and claim e-rights from you unless they use a mechanism like the Settlement’s arbitration (but only if you opted in).


Frances will look into it, there is nothing listed, that I know of. The past year of going in circles in the debate about ‘Carbon schemes’ has exhausted both sides down here. The Liberal-Conservative party in particular has come out of the debate backwards (and very confused) , it is now behaving like a party of agrarian socialists ,opposed to the Governing ‘Labor’ party’s free market scheme.

Lynley

“unless they use a mechanism like the Settlement’s arbitration”

Do you get the feeling that this is exactly what the gigs all about?


John,

Of course the Settlement is largely about giving rights to publishers they did not legally acquire, or which have expired; also about handsomely supporting the Author’s Guild with the Book Registry.

Congress should be too preoccupied with the recession and the war in Iraq to be passing Orphan Works Acts, but we can’t count on it. There are just too many parties eager to seize e-rights and other publication rights.

Fran


“Unjust enrichment” is the real and sole title of this scam.


From Paul Aiken’s declaration in support:

41. We also wanted to be sure that authors of inserts were proportionately compensated for their work. The Authors Guild has extensive experience with how rights are acquired to include an insert in a published book. Insert rights are sometimes acquired for free by the author (or the publisher, but it’s often the authors’s contractual duty to clear rights to inserts). In other cases, the author (or sometimes the publisher) pays a fee for the right to display the insert. That fee is usually a relatively modest sum. It is invariably, in our experience, a one-time fee: the rightsholder is paid a flat fee for permission to include the insert in the book.

Not for the first time, Aiken takes my breath away, but here goes:

The Authors Guild, which has as Aiken says ‘extensive experience with how rights are acquired’ undoubtedly also has extensive experience of the terms of typical permissions licences granted by publishers’ rights departments and literary agents, which invariably include limitation and/or termination clauses, and never envisage (sometimes specifically forbid) sublicensing to third parties.

Aiken avoids quantifying what he calls the ‘relatively modest sum(s)’ paid in licence fees. A dozen years ago I paid, as an editor, $98 and $105 respectively for the licences to two poems by a distinguished contemporary US poet (UK and Commonwealth only: US rights as well would have cost me double fees). The licence terminated after ten years. Incidentally, this particular poet required details of all the other poems in the anthology before she would consent to have her work appear in it. And let me add, I fully support her right to decide where her poems should be published and in what company.

Fees paid to other poets for the UK and Commonwealth rights ranged from $50 a poem upwards. For example, three poems by UK author Maureen Duffy (now a ‘representative plaintiff’) cost me £95 ($150); the agreement drawn up by her agent stipulated that the maximum number of copies to be printed before relicensing was 10,000.

Note that these were licences to use these poems in an anthology from a small feminist press; a mainstream publisher doing an anthology with a big print run would generally be charged more money. Note also that for well-known poets who are anthologized frequently these permissions fees will add up.

I shall say nothing about licences for short stories, of which I have no direct experience.

Now Aiken wants anthology editors and publishers to work in with Google and the Book Rights Registry in making commercial use of anthologized works in perpetuity, for no additional payment to the authors beyond what was paid at the time of the original print publication, except for

a) $15 a poem/story/essay for works included in books digitized on or before 5 May 2009 (but nothing, zilch, zero if the work is digitized later)

b) an inclusion fee ‘targeted at’ $50 for those anthologized works whose authors agree that they should be included in the Institutional Subscription Database; this fee, if paid at all (and let’s remember that the Institutional Subscription Database is pure vapourware) is to be paid ten or twenty, even thirty or forty years down the line (see Attachment C to the settlement agreement).

In the meanwhile, in addition to collecting subscription fees for the database, Google would have the right to

a) sell online access to the poem/story/essay

b) permit it to be printed

c) sell it in e-editions of the anthology or collection

d) license Print on Demand editions of the anthology or collection.

Assuming a successful venture -

Revenue would flow to the Book Rights Registry.

Revenue would flow to the anthology editor.

Nothing would flow to the author of the poem/story/essay.

Nothing except a distant and uncertain prospect of a one-off $50 payment.

And this is what Aiken calls ‘[being] sure that authors of inserts were proportionately compensated for their work’!


“Inserts” are not just anthologized works in the strictest sense. There are is also material used to support one main work: Short biographies of the author, critical analyses of the work, essays by the author on how he/she wrote the work, prefaces by another author extolling this author and his/her work, glossaries of archaic and foreign terms, endnotes, and other material.

I’m envisioning a situation where any publisher needing such material just dives into the Google database of freebies rather than paying someone to write it. Of course some of it may have been work for hire to the original publisher; but the whole point of the Settlement is to acquire and re-sell all works en masse without discovering who actually owns the rights.

One question I have is: Will “inserts” become every part of a book that can stand alone? How-to books by one author, for example, often consist of chapters focusing on different techniques or projects that can be used without reference to the rest of the book. So, under the terms of the Settlement, will Google be able to separate a book on home repairs into its components, sell each separately, and then claim it’s not necessary to pay the author because these are “inserts”?


I doubt it. The settlement doesn’t authorize the sale of Inserts in Consumer Purchase; only of whole Books. I haven’t checked the exact language, but I doubt that Google could pull a book apart into its components and sell (or give away) them individually.


There’s no material difference to Google or the publisher of a printed anthology between displaying the entirety of an insert with advertising and selling a license to reproduce it in hardcopy. Either generates revenue, none of which would go to the insert author.

It;s particularly unfair for the print publisher to receive this revenue, when licenses for the inclusion of a short story or poem in an anthology typically balance a one-time fee with a time-limited license that is also limited not just to a single edition but to a specified maximum number of copies in the press run for that edition.


Am I right, however, that Google could pull apart standalone sections of a book, call them “inserts,” and display them to sell ads?


Prof. G notes that Google under the GBS can only sell whole books, not component parts(i.e. inserts) . This is the same issue confronting the music business-sales of albums/whole CDs or what consumers want: a single song, made available on i-Tunes. Doesn’t Preview allow a Google Book user to download for free 20% of any book, which 20% would include a poem or 20 page essay or short story? Selling permissions is traditionally a significant business for literary agents and publishers. Traditionally the permissions are limited-but now, permissions have to take the e-publishing world into account, and now, permissions to reprint inserts/poems/essays/short stories will have to contain additional language to ensure pass through of some e-generated revenues from the anthology publishers to the author. Has anyone seen any such current,state of the market permission agreement, revised and written for the current post-GBS/Amazon/Kindle/Sony Reader World ?


I entirely fail to see why someone who published a short story, essay, poem, or other short work should lose their copyright to it just because you assert the “digital world wants single works,” even for new works, let alone those published before e-books were invented.

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