Following the release of the court-mandated revision to the Google Books Settlement, CEPIC—formerly known as the Coordination of European Picture Agencies and just rebranded as Centre of the Picture Industry, complete with a new logo—has renewed its objections to the precedent-setting agreement.
CEPIC noted that the new version of the settlement endeavors to address a number of issues by, for example, refining some definitions and excluding 95% of foreign works. Still, CEPIC feels that the revisions, which were tentatively approved by the court on Nov 19, do not address the photo industry’s main concerns: It still allows Google to use and sell works on an opt-out basis. It does not exclude all foreign works, with Google retaining rights to index materials originating in the U.K., Canada and Australia. Perhaps most importantly, the settlement assigns to a new body, the Unclaimed Work Fiduciary, the power to set terms on behalf of authors of orphaned works.
CEPIC reiterated its monopoly concerns, stressing that the settlement places Google in the position to dictate market terms to not only authors and publishers but also future entrants into the same space.
Though a Google spokesperson has previously stated that the company will not republish images for which it has not secured relevant rights through the settlement, CEPIC stresses that this provision remains omitted from the language of the settlement. “There is no legal guarantee that Google will actually black out/block images in the future,” said CEPIC in a statement.
Even if this happens, CEPIC points out that taking pictorial material out of a book affects the integrity of the original work. “Sooner or later, Google will address photographic rights. At this later stage, photographic associations, who were not part of the first round of negotiations, will be in a very weak bargaining position to assert the rights of the authors they represent,” cautions the organization.
In sum, CEPIC is still calling for the settlement to be thrown out and for new negotiations to include stakeholders representative of both textual and visual content producers. This, however, seems unlikely in light of U.S. District Judge Denny Chin’s recent ruling that the settlement does not violate the rights of visual artists, who remain free to pursue Google under a separate lawsuit instead of attempting to join this one at what Chin felt was the proverbial eleventh hour.
As to orphan works-related implications, CEPIC is in the camp that favors a legislative solution. While the organization would prefer that orphan-work uses were regulated by new laws, negotiated at the international level, and facilitated by independent public bodies, the main party to the lawsuit that led to the settlement pointed out the problem with this approach is time. Paul Aiken, executive director of The Authors Guild, told The Wall Street Journal: “You can’t solve this problem without something like a class action. We weren’t going to sit around and wait for a legislative solution.”