The news broke through just a week ago: the SNE (Syndicat national de l’édition, the French Publishers Association) had settled with Google; they were to hold a press conference on Monday. I pondered over the news on Saturday night and I wrote to an American friend on the next morning.
I thought about publishing this letter after improving it, but another news broke through today: Google had appealed Judge Chin’s order granting the Authors Guild motion for class certification. The sooner, the better, I thought; and I did not change a word.
Oocorphans stands for “out-of-corphans”, which is the nickname I gave to the French Law on Digital Exploitation of Unavailable Books (03/02/2012), because in my opinion, this law paves the way for orphan works to be digitized together with
out-of-commerce unavailable books, over the dead body of authors’ rights, and to no avail for libraries.
Google will most certainly try to promote the French Settlement in the U.S.; in which case the Authors Guild had better know that the settlement (which has not been disclosed so far) has not been disclosed either to the French Authors Guild (Société des gens de lettres), which did not take part in the negotiations between Google and the SNE.
With French Google Books Settlement and French oocorphans law, Google and French publishers can get a possibility to share a tacitly renewable 10-year exclusivity on orphan and out-of-commerce works (paper and e-book) without negotiating p-rights nor e-rights, either with authors, rightsholders, or a collective rights management society.
I shall publish additional posts if I can, either in French or in English.
I am wondering if there is any relation between Monday’s settlement and French oocorphans law (which regulatory decree is expected before Sept. 2, 2012). There could be one, actually. In 2010, Hachette Livre Chief Legal Officer declared that unavailable works, as defined in Hachette Livre and Google memorandum of understanding, were defined the same way as in the [oocorphans] project of law (“la notion d’« oeuvre indisponible » prévue par le protocole d’accord Google [et de Hachette Livre] est la même que celle du projet Zone grise, selon les mêmes critères”, “Accord Hachette-Google”, Légipresse n° 278, décembre 2010, p. 391-392).
According to French oocorphans law, an ooc book can be digitized if it is not available in print or as an e-book (“Art. 134-1. - On entend par livre indisponible au sens du présent chapitre un livre publié en France avant le 1er janvier 2001 qui ne fait plus l’objet d’une diffusion commerciale par un éditeur et qui ne fait pas actuellement l’objet d’une publication sous une forme imprimée ou numérique”).
Wanting to make a commercial use of unavailable books, SNE and Google had better wait for oocorphans law to be enforced. Why? Because this law will enable publishers to grab books e-rights without having to negotiate them with authors or rightsholders. How? From the moment an ooc book will be listed in the unavailable books database, publishers will just need to wait for six months to get the e-rights. If no author or rightsholder shows up, publishers can just get e-rights for nothing. Should an author, or a rightsholder show up, nothing is known yet about the way they are supposed to opt-out (rings a bell?). What we know for sure (because it is stated in the oocorphans law), is that if these guys show up after six months, they are supposed to prove that the publisher doesn’t own the p-right, which is a) contrary to the Berne Convention, b) (even worse) proving a negative.
Without oocorphans law, French publishers and Google would have had to negotiate e-rights with authors in order to be able to make a commercial (and lawful) use of unavailable books. Last, but not least: with oocorphans law, from the moment they would have put e-books made up from ooc p-books on the marketplace (had they, or had they not negotiated e-rights), French publishers would have deprived themselves from a unique opportunity to get some e-rights for free thanks to the oocorphans law, as the unavailable book is defined above as “neither in print nor in e-book form”.
(I hope that I am making this clear enough for you).
Now, the morals of this story is that French publishers have apparently managed to reverse the situation to their own advantage. Google is stuck in the U.S. trial. No way to use orphan works in the U.S. In France, if no author / rightsholder shows up to claim a book registered in the unavailable database (which will be the case with orphan works, which are also defined in oocorphans law), publishers will be entitled to sell orphans (on top of unavailable books whose authors will not have opted out) and, guess what, the original publisher (or any publisher owning the original publisher’s backlist, I suppose) will have an exclusive right on it. This is precisely what French Government had opposed in GBS 1.0. Looks like Google tried to steal a big piece of meat, and French publishers came over to (successfully) get their share (splitshare unknown). No need to tell you what I think about this law.
TO BE CONTINUED
(IF I CAN)
The French Google Books settlement caught up by its American Cousin
is a sequel to
Made-in-France GBS: French Google Books Settlement explained to my American friends
(Source : GBSfr-GBS-French-Google-Books-Settlement-explained-American-friends)