Google Book Search Settlement and Library Consortia

The Google Book Search Settlement Agreement includes two points where library consortia come into play: discounts for institutional subscriptions and receipt of digitized books by members of a consortium. The Google Book Search Settlement calls such consortia “Institutional Consortia” and the definition of that phrase and the places in the Settlement where it occurs are extracted below.

This is a review of the Settlement document as it was submitted to the U.S. District Court for the Southern District of New York in the case of The Author’s Guild et al v. Google Inc. The court has given preliminary approval of the Settlement, but it might still change.

Defining “Institutional Consortium”

Paragraph 1.73 (page 10) of the settlement agreement is this formal definition:

“Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia with the exception of Online Computer Library Center (OCLC) – affiliated networks.

ICOLC is “an informal, self-organized group” of library consortia from around the world. It is made up of consortia that agree with the ICOLC Statement of Current Perspective (as updated December 2001). At the time of writing, it is made up of 206 members.

“Sales of Institutional Subscriptions through Institutional Consortia”

The first place where the term Institutional Consortium is used is in paragraph 4.5(b)(iv) on page 57 (Standard Revenue Spilts and Discounting, Discounting Subsidies, Sales of Institutional Subscriptions through Institutional Consortia):

Approved discounts, if any, that Google is authorized to offer to an Institutional Consortium or its members will be included as part of the Pricing Strategy. Additional discounts will require Registry approval. Unless otherwise agreed upon by the Registry, Google is only authorized to offer discounts to Institutional Consortia if members of the Institutional Consortium purchase Institutional Subscriptions for at least seventy percent (70%) of the FTEs (i.e., full-time equivalent students) of the members of the Institutional Consortium. For purposes of this Section 4.5(b)(iv) (Sales of Institutional Subscriptions through Institutional Consortia), absent agreement of the Registry, Google may not offer such discount to any Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective and that was formed for the primary purpose of entering into an Institutional Subscription agreement with Google. Google will notify the Registry no less than thirty (30) days prior to entering into an Institutional Subscription agreement, with an approved Institutional Consortium discount, with an Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective.

A couple of points that lead up to this.

Institutional Subscription
“The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.” (Settlement, 4.1(a)(i), p. 42) “Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties, the scope of Books available, the quality of the scan and the features offered as part of the Institutional Subscription.” (Settlement, 4.1(a)(ii), p. 42) “Pricing will be based on FTEs (Full-Time Equivalency). For Higher Education Institutions, FTE is defined as full-time equivalent students.” (Settlement, 4.1(a)(iii), p. 42) “Higher Education Institutions… will be sub-divided into sub-categories based on the Carnegie Classifications…” (Settlement, 4.1(a)(iv)(2), p. 42)
Pricing Strategy
Google and the Book Rights Registry will agree on pricing strategies every two to three years. Elements of the pricing strategy include the target retail price for each of the pricing bands (for higher education the bands based on the Carnegie Classifications), pricing for andy discipline-based collections that Google may propose, the time period through which Google has the authorization to sell subscriptions, expected increases or decreases in price at annual anniversary points during the pricing strategy period, and “the amount of discount, if any, that Google is authorized to offer to institutions and to Institutional Consortia. Any discounts above the approved discount require Registry approval.” (Settlement, 4.1(vi)(1)(e), p. 44)

Institutional Consortia with regards to “Fully Participating Library and Cooperating Library Rights and Obligations”

The other place where the phrase “Institutional Consortium” is invoked is in the section regarding rights and obligations of participating libraries (Settlement, 7.2(iii), p. 73). It appears to be a mechanism for Fully Participating Libraries (those that agree to receive digital scans) to receive digital copies of books even if those books weren’t part of the scanned subset from that library. Just prior to this paragraph in the agreement is discussion of how a Fully Participating Library can receive digital copies of books the library holds but were not include in the set of books digitized at that library. This paragraph would seem to be an extension of that concept to cover to the consortial libraries as well where Google agreed to only scan a selected subset of each collection.

For any Institutional Consortium that (1) exists as of the Settlement Agreement Date, and (2) with which Google has a Digitization Agreement, Google may provide each Fully Participating Library that is a member of that Institutional Consortium with Digital Copies of Books in that Fully Participating Library’s Collection that Google did not Digitize from that Fully Participating Library’s Collection, provided, however, that a Fully Participating Library may receive an [Library Digital Copy] of all of the Books in its Collection only if at least ten thousand (10,000) Books were Digitized from such Fully Participating Library’s Collection, and (a) if the sum of the Collections for all Fully Participating Libraries in the Institutional Consortium is two million (2,000,000) Books or more, Google Digitizes more than six hundred fifty thousand (650,000) Books from those Fully Participating Libraries’ Collections, or (b) if the sum of the Collections for all Fully Participating Libraries in the Institutional Consortium is fewer than two million (2,000,000) Books, Google Digitizes more than thirty percent (30%) of the Books in aggregate from those Fully Participating Libraries’ Collections. Google will not provide such a Fully Participating Library with a Digital Copy of any Book that is not held by that Fully Participating Library.

At the moment, I think the only consortia that qualifies for this definition is the CIC group.

The text was modified to update a link from http://www.library.yale.edu/consortia/statement.html to http://icolc.net/statement/statement-current-perspective-and-preferred-practices-selection-and-purchase-electronic on November 13th, 2012.

The text was modified to update a link from http://www.library.yale.edu/consortia/2001currentpractices.htm to http://legacy.icolc.net/2001currentpractices.htm on November 13th, 2012.

The text was modified to update a link from http://www.library.yale.edu/consortia/icolcmembers.html to http://icolc.net/consortia on November 13th, 2012.

The text was modified to update a link from http://www.library.yale.edu/consortia/ to http://icolc.net/ on November 21st, 2012.

(This post was updated on 16-Jun-2014.)