Jenna Newman Gives a Publisher’s Perspective

By [Friday, March 11th, 2011] at 2:30 pm

Jenna Newman’s new article, The Google Books Settlement: A Private Contract in the Absence of Adequate Copyright Law has just been published in Scholarly and Research Communication. Newman worked with the University of British Columbia Press to claim its books with Google and to formulate its strategy for dealing with the proposed settlement. Her article is an utterly invaluable look at the settlement from a publisher’s perspective.

I would like to pass quickly over Newman’s overview of the settlement and discussion of the larger policy issues it raises. She has spent a lot of time thinking about the settlement and is deeply versed in the literature on it. There is little here that will be new to settlement junkies, but these sections are a good synopsis of the debates for more casual settlement followers.

The heart of the article is its discussion of the settlement’s implications for publishers. Here are some of the interesting factual and analytical points Newman raises:

  • Canada already has an orphan-works scheme administered by the Canadian Copyright Board and Access Copyright. Although the settlement will cover Canadian books, it “does not refer to this Canadian scheme but instead develops its own additional layer of bureaucracy.” Nonetheless, “it is difficult to separate the commercial circumstances of Canadian and U.S. publishers.” (18)
  • Academic authors’ interest in wide distribution diverges from their publishers’ commercial interests. (20)
  • “The revenue models generate more revenues for Google than for publishers” — or for authors — although this is contingent on the exact split between authors and publishers. (21)
  • ” However, although the work to assemble and manage a claim is not trivial, opting out does not relieve a publisher of much of that work, as it must still forward to the settlement administrator a complete list of all books that the opt-out covers.” I personally doubt this, although I admit to having changed my mind on it in the past and reserve the right to change it again. I believe a simple “I opt out” statement is sufficient, and leaves the burden on Google to avoid making any uses of any books to which one holds the rights. The parties cannot put the burden of sorting that out on the copyright owner who wants nothing to do with the settlement. However, as a practical matter, for the copyright owner who doesn’t plan to bring an independent lawsuit, Google’s promise to remove claimed books is the best available option, which means one should go ahead and identify them all. (21)
  • UBC Press has been a member of the Partner Program since 2005, as it “offers many of the benefits the settlement does, but further limits uses by Google.” The direct advertising revenues are peanuts, but the traffic and provides advertising for the titles. (22)
  • UBC Press isn’t interested either in Consumer Purchase or the Institutional Subscription. It already is quite well-positioned to sell to academic libraries. Indeed, “It is therefore to UBC Press’ advantage to remain in the settlement class and participate in the Partner Program.” (22-24)
  • “As of 2010, the majority of UBC Press’ titles are included in the Partner Program, which means that even before the Press removes or excludes its list, most of its titles should not be subject to the settlement’s access and display uses anyway.” This substantially confirms the William Morris Endeavour advice that publishers are unlikely to make much uses of the settlement programs. (23-24)
  • UBC Press’ initial 2005 letter to Google objecting to the book scanning simply told Google what UBC Press’ ISBN prefix was. That’s a remarkably simple way of communicating a simple request. (23)
  • UBC Press had a difficult, tedious process for creating its complete list of titles. It involve multiple internal databases and paper records, both of which fed into a complicated Excel spreadsheet. (25)
  • In some ways, Google had better metadata than UBC Press itself did; in some ways, its metadata was much worse. Publishing is full of corner cases, such as editions with the wrong ISBN that were fixed by pasting in a correction. Newman comments, “Though these error rates may be acceptably small to Google given the database’s side, they create a more significant effect on individual rightsholders.” (25-26)
  • The database is (or was, as of the article’s last edit) still incompletely baked. Given, for example, the different ways to identify UBC Press (e.g. “University of British Columbia Press”), it is not confident that it has found all of the entries for its books. Other limitations and ambiguities remain. “The settlement administrator has not articulated how Google will reconcile hard- and softcover versions … .” (26-27)
  • When it comes to the rights, “UBC Press considers any cash payments under the settlement to be a form of subsidiary rights and proposes to split these revenues 50/50 with authors.” (27)
  • The workings of a search of the database are described in detail — with a diagram — at pages 28-29.
  • “Although it can be time-consuming to confirm individual titles’ rights status, this is not an unreasonable demand of publishers, which should already have systems to manage rights.” (33)
  • UBC Press plans to substitute itself for at least two of the settlement’s key programs. First, by withholding all titles from display uses, it keeps the books out of the Revenue Models. Second, it has little need for the Registry: “The Press is better positioned to identify and locate authors or their heirs than the Registry and can offer authors more efficient disbursements and ongoing claims management.” (33-34)
  • “UBC Press’ assertion that virtually all its books are still in print unless authors say otherwise could be cynically interpreted as an opt-out digital rights clearance strategy of its own. However, the Press maintains ongoing communication with its authors, and, unlike Google’s, UBC Press’ use of authors’ work is founded on an initial explicit grant of rights and mutual investments in the work’s content. It will keep authors informed of settlement developments, though the Press has deferred its planned author outreach until the settlement’s future is clearer following the ruling.” (35)
  • The future remains quite uncertain: “Rights-holders, however, are in the trickier position of estimating the potential value of their works in a market just barely emerging.” (35)
  • Newman is less concerned that publishers will use the settlement to grab rights from authors than that others will make unfounded claims to orphan works. Google won’t care if the wrong person claims a book, and the BRR may not be in a position to investigate. (41)
  • As of 2010, book prices couldn’t be uploaded in bulk, but had to be “entered manually, book by book.” Has this changed with the launch of the Google eBookstore? Anyone out there who has worked with the interface, let me know. (49)
  • “Publishers are not solely motivated by economic interests either. … But a publishing house is also a business … .” (52)
  • From the footnotes: “In terms of income earned, UBC Press may well see higher returns selling one or two copies of each backlist title per year than on a title’s inclusion in the institutional subscription.” (57)

Highly recommended; worth reading in detail.

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  1. Posted March 19, 2011 at 10:15 am | Permalink
    UBC Press was never pleased with Google’s unauthorized digitization through the Library Project and did not necessarily want to contribute to the Library Project or Google Book Search under the settlement terms. … UBC Press’ strategy [opting in] was to optimize its own position under the settlement while minimizing Google’s ability to commercialize intellectual property in which the Press had an interest and to which the Press felt Google had no rights. (Pages20-21)

    I am not sorry that I’ve opted out of the settlement, because it does not confront the issue of Google and its library partners infringing my (copy)rights. Google likes to say that if someone does not like their search service they can always go to another search engine. I can see them saying that, “We have had so many thousands of people opt into the settlement agreement, if they did not like it they could have opted out.” Even though in order to have a voice in the settlement you had to opt in, ( i.e. you could not opt out and also object to the settlement before the court), I feel that if everyone who objected to Google & Company’s unauthorized digitization of their works had opted out (i.e. instead of putting their effort into pleasing Google by registering their work they put their effort into writing their elected representatives objecting to this infringement of their rights) it would have sent a clear message to the courts and the United States (The Department of Justice) that Google & Company’s digitization was an infringement of their rights.

  2. Posted March 20, 2011 at 9:23 am | Permalink
    Even if the court declines to refer the class action complaint to U.S. Congress to decide, as some objectors recommend, the settlement certainly underlines the need for and public desirability of congressional action in the shape of meaningful, legislative copyright reform. (Page 42)

    Can Judge Chin refer the case to Congress?

  3. Posted March 20, 2011 at 10:26 am | Permalink

    In any official sense, no. The most he can do is write an opinion that unofficially recommends Congress deal with the issue. Judges regularly do this, and Congress occasionally pays attention. (But only occasionally.)

    • Posted April 17, 2011 at 1:32 pm | Permalink

      Now that the settlement has been rejected James, I think it will be interesting to see if new coalitions of victims (such as the UBC Press) form to assert their rights.

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