Saturday, October 17, 2009

Google Book class action settlement in U.S. opens can of worms worldwide

The film "Class Action" (1991) is based on a real case where a person injured in a traffic accident sues and prevails against a major automobile manufacturer in a class action lawsuit. A product of the American court system, the class action is known as a method for protecting powerless individual right holders, by having a plaintiff file a suit in court as a representative of a group consisting of small right holders, and allowing all group members to share in the results. The Google Book Search Settlement is a settlement in a class action lawsuit filed by the authors' association representing a group of authors.
In this case, however, once the notice of the settlement was given, it was revealed that this "group" being represented was incredibly "broad." According to the notice, in short, whether you are a member of the group or not should be determined by "whether you have any copyright interest in the U.S. or not." The U.S., as a signatory to relevant international agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), has pledged copyright protection to approximately 180 countries, including Japan. Consequently, copyright holders located nearly all over the world must be included in the "group." What's more, the settlement introduced an opt-out system, where all copyright holders are assumed to be members of the group and certain procedural steps are required to opt-out from the group. Unless people explicitly opt-out, therefore, all of Japan's copyright holders are deemed as "members" of the plaintiff's group in the Google Book Search Settlement.
One remarkable aspect of this settlement is that it relates not only to compensation for Google's unauthorized scanning of the books, but also provides management schemes or payment conditions for the future use of scanned data by Google. This could give Google numerous copyright licenses on a global scale, accompanied by the additional benefit of not having to deal with so-called "orphan works" (those where the whereabouts of the right holder is unknown) one by one.
Scanning a book is "reproduction," which, under Japanese law, is an infringement of copyright if done without prior authorization. This author's right is carefully protected by the Berne Convention and other international agreements, and, as such, the requirements for introducing a system by which copyrighted material can be reproduced without consent are very strict. (This is why the handling of "orphan works" often raises questions that are hard to resolve in many countries.) Certainly, the Google case is a private lawsuit where implementation or interpretation of international agreements may not be discussed. At the same time, however, there might be a question of whether it is appropriate to confer a single U.S. enterprise with such enormous interests and allow its extraordinary conception of digitalization to become realized. It is not surprising that some foreign governments, including France, have filed written objections to the court.
Details of the settlement are premised on the U.S. publishing business, and basic contractual structures common in the industry, which are naturally based on U.S. copyright law. This results in stark dissonance with Japanese right holders in quite a few issues such as how to determine "out-of-print" books in the market, for example. The settlement's text has few provisions concerning international implementation of the settlement, which makes us wonder whether the lawyers had been aware of foreign right holders before they started to prepare the notice of the settlement. The whole text of the settlement has not been officially translated into Japanese, and, as such, procedural steps provided for foreign right holders were not fully detailed or as careful as expected. Many right holders still doubt if people outside of the U.S. can be a member of a group in a U.S. class action. Recently, debate has erupted both in and outside of the U.S. on the matter, and it is said to be unknown whether the settlement will be recognized as drafted.
In any case, it's an unprecedented case in which, as far as in book form, all people in Japan producing copyrightable materials, including "manga" comics, have been embroiled in a single U.S. civil lawsuit. Individual copyright holders may split into a variety of options in accordance with how they consider digitalization of books or the future distribution of books in digital form. But it also raises questions of whether this should be dealt with in a more centralized manner, because it is sure to have ramifications for the future of Japanese culture and industries concerned. (By Wakaba Hara, Special to the Mainichi)
Source mdn.mainichi.

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