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Analysis Finds Proposed Google Books Settlement Violates International Laws and Treaties

May 10, 2010

SAN FRANCISCO, May 10 /PRNewswire-USNewswire/ — Today, the Open Book Alliance (OBA) released a comprehensive analysis that details how the proposed Google Books Settlement violates international laws and treaties. For the first time, the proposed class action settlement between Google, the Association of American Publishers and the Author’s Guild has been fully evaluated to determine the claims and remedies that other nations may seek through the World Trade Organization (WTO) for the violations that an approved Google Books Settlement would incur.

Cynthia Arato, partner at the law firm of Macht, Shapiro, Arato and Isseries and a prominent litigator on intellectual property and copyright issues, finds that “numerous provisions of the proposed Google Books settlement would, if approved, violate the treaty obligations of the U.S. If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.”

Foreign nations that wish to challenge the U.S. over treaty violations of the settlement may do so before the World Trade Organization. Violations can lead to financial penalties or trade sanctions against the U.S. The governments of France and Germany have already formally objected to the proposed settlement.

The comprehensive memo, available at www.openbookalliance.org, outlines the following violations of an approved Google Books settlement to include:

  • The inability to protect copyright owners’ exclusive rights to their content, a fundamental provision of the Berne Convention for the Protection of Literary and Artistic Works.
  • The principles of the World Trade Organization’s agreement on Trade-Related Aspects of Intellectual Property Rights.

The proposed Google Books Settlement is currently awaiting a final judgment from Justice Denny Chin of the District Court of New York’s Southern District. The OBA believes that the proposed settlement threatens to monopolize the access to and distribution and pricing of the largest, private digital database of books in the world. It would do so by using the class action mechanism to not only redress past harm, but to prospectively shape the future of digital book distribution, display and search.

SUMMARY OF ARATO MEMO:

Proposed Settlement Treaty Violations

The proposed Settlement would violate two fundamental provisions of the Berne Convention for the Protection of Literary and Artistic Works:

  • The protection of copyright owners’ exclusive rights
    • ‘Rights’ afforded to class members under proposed Settlement are an inadequate substitution for the exclusive rights it takes away
  • The prohibition against imposing formalities that would impair the exercise of those rights
    • Requires foreign rights holders to opt out to preserve existing copyright protections
    • Imposes a registration requirement previously repealed by Congress in light of Berne’s prohibition against formalities
    • Settlement’s definition of ‘books’ poses particular burden to foreign rights holders

The proposed Settlement would violate the principles of non-discrimination enshrined in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs):

  • Under TRIPs, “any advantage, favour, privilege, or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members
    • Nationals of UK, Canada, and Australia are largely spared burdensome registration process and unclear publication requirement
    • Settlement gives UK, Canada, and Australia a seat on the Book Rights Registry
    • Settlement restricts Google’s right to exploit commercially available books in the UK, Canada, and Australia, but these restrictions do not apply to other countries

Consequences for Treaty Violations

Foreign nations that wish to challenge the U.S. over the treaty violations of the Settlement, if approved, may do so before the World Trade Organization (WTO):

  • Dispute would be brought before international panel of judges
  • If a violation is found to have occurred:
    • Panel would recommend steps for U.S. to come into compliance
    • If the U.S. failed to withdraw offending measure, parties to proceeding can seek financial compensation for violation
    • If the U.S. failed to pay compensation, aggrieved Member states can be authorized to impose trade sanctions to offset harm

Environment suggests Nations may seek remedies

Actions being taken by nations make it reasonable to expect that a formal claim may be filed before the WTO:

  • Governments of France and Germany took the uncommon step of filing an objection to the proposed Settlement
  • In December 2009, a French court found that Google’s Book Search service violated French copyright law
  • Foreign nations may view the proposed Settlement as damaging to their own efforts regarding orphan works and book digitization:
    • European Commission’s i2010 Digital Libraries Initiative has a European digital library with 4.6 million books, maps, and other items
    • French President Sarkozy recently pledged 750 million euros toward digitizing books seen as an effort to protect cultural heritage

About The Open Book Alliance

The mass digitization of books promises to bring tremendous value to consumers, libraries, scholars, and students. The Open Book Alliance works to advance and protect this promise. And, by protecting it, the Open Book Alliance asserts that any mass book digitization and publishing effort be open and competitive. The process of achieving this promise must be undertaken in the open, grounded in sound public policy and mindful of the need to promote long-term benefits for consumers rather than isolated commercial interests.

Members of the Open Book Alliance are Amazon.com, American Society of Journalists and Authors, Council of Literary Magazines and Presses, Internet Archive, Microsoft, National Writers Union, New York Library Association, Science Fiction and Fantasy Writers of America, Small Press Distribution, Special Libraries Association and Yahoo!.

SOURCE Open Book Alliance


Source: newswire



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