Online literary angst

As the deadline looms, New Zealand authors must decide whether to opt in to a controversial agreement which lets online giant Google scan their works for American audiences.

For the Eketahuna author whose masterpiece is gathering dust in the local Sallies' store, the prospect of exposure to a vast American audience browsing Google Book Search must be some consolation. Especially if a few greenbacks eventually trickle through from the publisher, under copyright.

For five years now, Google has been hoovering up all the information from millions of books worldwide, putting knowledge from the world's great research libraries just a mouse click away in the Google Library.

Internet users can access excerpts for research while subscribing libraries and similar institutions can buy whole books. It's a short step to all users downloading whole book files.

And it's not just research books. Google has digitised novels, poetry and non-fiction by Janet Frame, Hone Tuwhare, Witi Ihimaera, Michael King, James K Baxter, Keri Hulme, Maurice Gee, Margaret Mahy and dozens of other New Zealand authors without their permission.

Google maintains it can digitise and show excerpts of copyrighted books under US "fair use" laws. It has also digitised thousands of books by agreement with authors under its Partner Programme.

But since 2004, it has scanned books without permission of the author or publisher through deals with libraries and institutions.

A court challenge by American authors and publishers last year was supposed to give them a degree of control over Google's activities and ensure copyright dues were paid.

What emerged was an out-of-court settlement full of compromises which - if ratified by a judge in October - could ensnare authors around the world. It looms, says the New York Review of Books, as an electronic library that could out-Amazon Amazon.

The internet's global reach and the e-book revolution made it inevitable that books by New Zealand authors would be digitised. But the proposed Google Books Settlement appears to challenge international copyright conventions and has left the world's writers with a stark choice: go with Google and limit your future options or opt out and receive not a pittance when Google digitises your work anyway.

Worse, writers have only until September 4, two weeks away, to nominate whether they want in or out of the proposed settlement.

As for internet users, it benefits only Americans - Google would be vulnerable to lawsuits if it extended access to other countries.

The purple prose coming from the New Zealand Society of Authors suggests a literary canon overflowing with airport potboilers. The deal is cultural imperialism on a par with the 1980s US flexing of military might over nuclear ship visits, says the Auckland branch secretary of the Society of Authors, Adrian Blackburn. " ... This monopolistic pre-emptive grab by a hugely wealthy US business - 'we'll just do it and you can sue us if you can afford to' - is an arrogant flexing of business muscle ...

"How about Google-free New Zealand as a slogan to match Nuclear Free New Zealand?"

Dunedin author Lynley Hood this week issued a summary of the deal accusing Google of "stealing New Zealand taonga". She says three of her titles, including A City Possessed, have been scanned by Google in breach of copyright laws. She told the Herald copyright means much more than money to authors. "It's the essence of our creative self-expression. It's a very powerful and visceral link between the creator and the work which Google has just swept aside."

Society chief executive Maggie Tarver says Google will be able to display up to 20 per cent of books deemed out of print in the US without permission. She believes the Government should act to safeguard the intellectual property of New Zealand authors.

"If New Zealand's laws and international treaties are not to be over-ridden by the arbitrary and oppressive conduct of private interests beyond our shores, the Government must do everything in its power to ensure that the intellectual property of New Zealanders cannot be used by Google or anyone else without the explicit consent of the copyright holders."

And so on.

Just why the society has left it to the 23rd hour to press the panic button isn't clear - but the slow dawning may be a combination of the deal's considerable complexities and disbelief that a private settlement in the US could have global ramifications for authors. The culprit, apparently, is the reciprocal nature of the Berne Convention, one of the oldest copyright treaties, to which the US and most other countries are signatories.

The society admits the hyperbole in part aims to rouse authors to decide their position. The looming deadline has driven a wedge between authors and publishers (the latter seem unconcerned, perhaps swayed by the potential income from books that would otherwise never be read), while authors themselves are by no means agreed on what to do.

Doing nothing means, if the deal is approved by an American judge, authors are deemed to be in, but will receive no compensation for books digitised by the end of last year, or for future works, says Tarver.

Opting in means helping to create a monopoly e-book library which will have huge control over the future of books and the payments authors and publishers receive.

Opting out preserves authors' rights to sue Google for displaying their works in breach of copyright - but that's seen as impractical for individual authors. The rewards would not offset the costs.

Tarver says the settlement allows Google to digitise books which are out of print or not for sale in America and make them available to American audiences. This will allow Google to display works from all over the world in the US with little prospect of being sued.

She fears the settlement will stymie the development of the fledgling e-books market. "The digital publishing rights explosion has a long way to run but Google having them effectively removes any competition." She says New Zealand authors should be cautious about throwing their lot in with Google. "Who knows where we could be in 10 years?"

Internet law expert Rick Shera, acting for the society, says the deal potentially threatens the future of libraries, publishers and distributors. "It's already the biggest repository of books in the world with some 10 million works on line and thousands more being scanned every day.

"Unless you really think you're going to get some increased sales out of it I can't see the benefit of opting in."

Opposition to the proposed settlement is growing in the United States, where the National Writers Union has called for members to opt out. Anti-trust agencies concerned that the deal is anti-competitive are investigating ahead of the approval hearing before a New York federal court.

Three of Google's largest rivals are joining a coalition to oppose the settlement. Microsoft, Yahoo and Amazon.com are all part of a group being called the Open Book Alliance. It's being put together by the internet Archive, a longtime critic of Google's digital book crusade.

Publishers in Germany and France oppose the settlement but the UK Society of Authors has recommended its members opt in - on the basis that opting out effectively allows Google to use a publisher's works as it sees fit.

Lynley Hood posted a response from the Economic Development Ministry's George Wardle to her calls for Government assistance. Wardle notes that the outcome of the court case is far from clear, with the settlement being investigated by the US Department of Justice and the European Commission. But he adds that there may be limited opportunity for any government to influence the process.

"It may well be that concerns with the settlement can only be addressed through changes to US federal law."

Wardle concludes that the ministry will continue to monitor developments.

Not everyone opposes the idea of their work finding a new audience on the internet. "I honestly don't think New Zealand writers and publishers have a great deal to be afraid of," wrote Victoria University Press publisher Fergus Barrowman on beattiesbookblog in response to Hood.

"Having a book scanned for Google Book Search raises its global profile enormously, and the terms allow one to dictate how much of the text is visible ... The book's copyright status is unaffected."

Adrian Blackburn can see the temptation for struggling authors to opt in, given Google's huge reach.

"Any cash infusion may be tempting when you may not have had any cash out of your books for a long time.

"It could work quite well for some people - if you're in the settlement you can control the use which Google makes of your book."

But he worries about what may happen down the track, if Google (or a future owner) decided to change conditions.

And what if a journeyman author hits the big-time with a blockbuster - but is then hamstrung in striking distribution deals for previous works because Google already has them on line?

Intellectual property lawyer Simon Rowell says the deal should benefit authors whose works are not on sale in the US.

"This is one distribution option that may not have been available to you before and which may make your book more widely read."

Opting in gives the ability to control the display of the book, he says. Under the settlement, authors who opt in can become objectors in the ratification hearing. The deal is non-exclusive and authors also retain the right to remove "in-print" works from the library at any time.

But Hood suggests Google will have such power it will "play fast and loose" with the rules.

Book Publishers Association president Adrian Keane did not respond to Herald calls. Hood says publishers see "the merry ka-ching of cash registers" in the deal.

The flagbearer for digital publishing in this country is the Digital Publishing Forum, a joint venture of the Book Publishers Association and the Society of Authors.

Director Martin Taylor is inclined to opt out. "It's far too early in the development of on-line books to allow something of this scope and potential, with so little control by rightsholders."

"The reality is they will become a de facto monopoly. They will have first mover advantage - it's unlikely anyone else will be able to afford to scan the vast library they have."

Taylor says publishers and authors who opt in will gain a pittance in royalties. For works digitised after May 5 2009, copyright holders -generally publishers - receive 63 per cent of any revenues, less operating costs for the registry set up to handle claims.

The dilemma, he says, reflects the concentrated power of the internet. Google is already the predominant search engine and could monopolise digital book access in the same way iTunes cornered music downloads.

GOOGLE BOOKS SETTLEMENT

* Copyright holders receive a share of US$45 million ($66 million) for books put online in the US without consent before May 5, 2009. The payment is expected to be about US$60 per title, depending on the number of claimants.
* In future, rightsholders will receive 63 per cent of any revenues Google receives through subscriptions or advertising around a title search.
* For books on sale in the US, Google can display excerpts with the author or publisher's consent.
* Books not on sale in the US are considered out of print and Google can display excerpts without author's consent. But participating rightsholders can have the book removed from the library.
* Google is granted other rights such as selling adverts around search results, selling subscriptions to entire books to libraries and institutions and, possibly, future downloads.
* Deadline for opting in is September 4.
* Deadline for claims is January 5, 2010.