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04 Nov 2009 | Danuta Kean

Whatever happens to the Google Settlement on 9th November, the impact on the global publishing industry will take longer to decipher, says Danuta Kean

When, on 9th November, both sides of the Google Settlement case file an amended agreement, there will be only one group of guaranteed winners: copyright lawyers. But for authors and other rights holders affected by the case, the outcome looks bleak whatever is agreed.

Under the Settlement, Google, which made a profit of US$21.79 billion in 2008, allows publishers to set the price of works available through its Google Books service. In return for Google's distribution, 45% of the revenue earned from either the download price or, if the book is free, accompanying ad revenue, will be returned to the rights holder. As well as complete texts, the service enables users to search within texts and cherry pick sections for download – it is the advent of slice and dice publishing for the masses.

Opponents fear the service drives a Trojan Horse through global copyright legislation, leaving rights holders vulnerable to exploitation and piracy. Supporters claim the service will re-energise authors' backlists and revive out-of-print and long forgotten classics.

Should the Authors Guild of America and Association of American Publishers fail to reach an agreement with the megalithic search engine, it will go to court, but as Richard Charkin, executive director of Bloomsbury warns, that is the last thing the book trader needs.

"A big concern is that this will all end up in court, if we lose it will be a disaster because copyright will then be fatally damaged and if we win then Google will appeal," he says. "If we then win again, Google will appeal and so it will go on. Either way we are screwed and bankrupted by lawyers."

If the trade is to avoid years of litigation worthy of Jarndyce and Jarndyce, a formula that allows Google Books to continue scanning, distributing and selling the intellectual property of publishers and authors should be in everybody's best interest.

Not that that makes the Settlement good news for an industry already battered by recession, digital downloading and increased piracy. It is the best worst option, Charkin says, though he adds that the ability of copyright to survive sustained attacks in the past offers some comfort. "Copyright is in good shape, it's proved it's flexible," he says.

It is, he adds, in everyone's interest, including Google's to maintain copyright. "We've had so many reviews of copyright over the years, and no one has come up with a better solution."

Others are less optimistic about the ability of copyright to withstand the onslaught of Google – or any organisation that follows its lead. "One of the real worries about the Settlement is that it hacks at the roots of the Berne Convention," literary agent Meg Davies of MBA warns.

Davies is the Association of Authors Agents' expert on the Settlement. Her expertise on the subject has not allayed her fears. "It could completely bring down the global law on copyright and all the conventions that we live by at the moment," she adds pessimistically.

But Richard Charkin's hope for the Settlement is no Pollyanna daydream. Rather he is one of those in the trade who feel that whatever the decision next week, pragmatic solutions must be found. They argue – usually off the record, so controversial is the subject – that the trade needs to move forward and avoid the wasteful attempts to resist change that followed the end of the Net Book Agreement 14 years ago, because the digital revolution that created this mess is irreversible.

Mention of the NBA may be why so few book trade organisations are willing to talk ahead of the 9th November about what the long-term affect of the case may be. There is a strong sense coming from the Booksellers Association, Publishers Association and Society of Authors that, though the Settlement, is not good news, if an agreement is not reached and it goes to court, the outcome will be even worse for the trade.

One thing unites those calling for outright resistance and those, albeit unwillingly, embracing change: rights holders have been placed in an unenviable position. On the one hand their demands for fair payment in return for content are attacked by the Free Access Movement as "standing in the way of free access to information". On the other they are vulnerable to pirates, who align themselves with Free Access activists, marketing themselves as the Cap'n Jack Sparrows of the information high seas.

It is an appealing image, but one undermined by two points: many of those whose content pirates steal are individual authors with little power to fight back and existing on much-reduced incomes; furthermore, the fact that these sites carry advertising implies their motivation for appropriating authors' work is less high romance and more a down-to-earth desire to generate ad revenue off the back of free content.

In the middle of this is the public, which has been raised on the idea that the internet and everything within it should be free. The public has even less understanding of the impact of piracy on creators' incomes than it does of the role of sweat shops in subsidising throwaway fashion.

Add to that the impact of iTunes, whose track-based business model has effectively destroyed the album and in the process undermined consumption and appreciation of complete creative works, and you have a market ripe for Google's slice and dice approach to books.

From the point of view of those who earn a living from their writing, it is not an optimistic outlook. No wonder Andrew Franklin, managing director of Profile Books says, whatever the outcome on the 9th November, the future for authors is bleak. "This could decimate authors' income," he says. Writing will become even less professionalised, a pursuit for the amateur. "Authors who live by their writing are in a far worse position than those who earn a living from other things, such as lecturing."

The most controversial aspects of the Google Settlement are its opt out system and so-called orphan works – work that is still within copyright, but where the copyright owner cannot been traced.

As it stands, rights holders are expected to register their copyright with Google. If they do not wish to have their works made available, they may opt out and their work will be removed from the system. Simple as it sounds, this can be an administrative nightmare requiring agencies and publishers to search the site for every edition of their clients' work. Inevitably only the highest earning authors are looked after in this way, authors lower down the pecking order are left to check for themselves.

"It's like inertia selling," claims Anthony Beevor, author of worldwide bestsellers Stalingrad and D Day: The Battle For Normandy. "Why should we have to make sure that they are not selling any of our different translations? My books are available in more than 30 languages, so I have to opt out for every bloody language. When you are talking about 12 titles in each language it is preposterous."

Even when authors' work is opted out, there are reports of it reappearing on Google Books. "Who is policing Google itself?" asks Meg Davies, who is among those who have seen ISBNs reappear the day after they were removed. No one is accusing the search engine of dishonesty, the administrative problems are regarded as symptomatic of the scale of Google Books.

But the most controversial aspect of the whole Settlement is orphan works. Google is adamant that it does not wish to breach copyright, but relying on rights holders to police the service leaves it open to criticism of its systems for tracing IP holders. "Orphan works is a misnomer," says Profile's Andrew Franklin. "The fact that Google haven't been very good at finding who a book belongs to doesn't mean it hasn't an owner."

For its part Google has hit out at critics of its plans. In an article published in the New York Times last month, the search engine's founder Sergey Brin wrote: "This agreement aims to make millions of out-of-print but in-copyright books available either for a fee or free with ad support, with the majority of the revenue flowing back to rights holders, be they authors or publishers." It is reasoning that has obvious attractions to authors in a business where the shelf life of their work is rapidly shrinking as publishers cut costs and in print time.

But Google's plans for orphan works have even raised hackles in the digital economy. The Internet Archive, a non-profit organisation, is working to clarify US copyright law and enable anyone to take content from orphan works. It opposes the Settlement because it would give Google the exclusive right to sell advertising or access to orphan works.

From the point of view of European rights holders, a further disturbing aspect of the Settlement is that in effectively internationalising US copyright law it threatens cherished rights not available in Stateside. A cardinal principle divides the two continents: in the US IP is a branch of property law; in the European Union it is a human right.

Does this matter? Yes, especially if you are a non-fiction author, because US law does not assert the moral rights of the creator, European law does. This means that authors whose copyright is registered in the EU have some control over how their work is used and where it is reproduced.

Without this protection, it is not unfeasible for an author like Richard Dawkins to be helpless if he finds his work selectively quoted in a book supporting Creationism. "It means that my work could be selectively quoted in a book by a Holocaust denier," explains Antony Beevor, clearly enraged.

Carole Blake of the Blake Friedmann Literary Agency explains the danger: "The problem is that very few people understand moral rights, but they are very important. It is your right to have your words appear as you put them down and not out of context."

Vehemently opposed to the Settlement because of its implications for copyright jurisdictions, she adds: "We have no idea where this is going to lead. That is what makes this so frightening." Those fears are unlikely to be allayed on 9th November, whatever the outcome.

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