The Coordination of European Picture Agencies has responded to the European Commission's request for stakeholder input on the controversial Google Book Settlement agreement. While CEPIC does not oppose Google pursuing agreements with libraries or universities, the organization's concern over the Google books settlement is that it does not address visual content yet stands to form a de-facto legal framework for such discussions in the future, on an international scale.
Founded in 1993, CEPIC is the stock industry's most powerful international lobbying body: it is registered as an Economic European Interest Group and has observer status at the World Intellectual Property Organization since 1997. CEPIC currently represents associations and libraries from 19 countries.
Image authors are only mentioned in the Google settlement as an exception, such as when they have copyright interests in a given book or when they license illustrations in children's books. According to CEPIC, this minority representation is insufficient: if allowed to stand, the settlement could retroactively legalize the infringement of millions of works that include photographs but compensate only writers and authors, since visual rights were left out of the agreement.
There have been some assertions that Google would black out images when digitizing content, but this is not actually part of the settlement. CEPIC does not believe that this is a viable course of action.
According to CEPIC, image licensing is a separate issue that must be negotiated with the full participation of copyright owners. "Photographic associations were not invited to the negotiations, although the scanned books include millions of photographs without the consent of their rights-holders… Sooner or later, Google will address photographic rights, imposing the same opt-out solution and thus creating orphan work," reads the CEPIC statement.
Consequently, the umbrella group wishes the settlement to be banished. CEPIC contends that a private company should not be allowed to set rules for how content providers are remunerated for their work. CEPIC also objects to the fact that the 130-page settlement agreement completely omits the discussion of photographic rights and broader artists' moral rights.
Among other major flaws of the settlement, as pointed out by CEPIC, are:
- Lack of a facility for authors to consent to having their work reproduced;
- Loss of settlement benefits to authors who do not claim works within months of reproduction, while Google remains under no obligation to seek out authors (which CEPIC feels can lead to creating orphan works); and
- Attempt to create a private registry, without any legislative supervision, to manage rights issues for digitized works (while CEPIC is lobbying for a public orphan-works registry).
The latter would cost Google some $35 million to set up, but the company also intends to retain 37% of the revenue generated, paying out 63% to known rights holders. According to CEPIC, works of authors who have not opted out or registered with the Google Book Rights Registry will be considered orphaned, all revenue remaining with Google. CEPIC says that the registry will act as "a new kind of collecting society, with the major difference that the authors have never transferred the management of their rights to them but have been obliged to do so based on a de-facto situation… dealing exclusively with the rights of 'orphan works' it has created by setting up the Registry in the first place… [and keeping] the contractual obligations for Google are at a minimum."
Finally, CEPIC stresses the monopoly aspect of the agreement and challenges the notion of the public good of a search engine in this specific case: "The Google Book Project is very different from the projects of Europeana, the Gutenberg book project, or the BNF project where the content which is digitized is made available for free to the public. The Google Book Project does not provide content for free but for profit."
The U.S. Government is currently investigating the settlement for antitrust violations. The Government of Germany has also filed papers in a U.S. court in an attempt to have the settlement nullified due to its international implications.