Hi all,
I attended the Google Book Settlement conference at Columbia University
last Friday March 13. Reading between the lines (and sometimes overtly
stated) of what was said, it seems that archives and libraries should be
concerned about how orphan works legislation can be impacted by the
settlement. While the settlement is focused specifically on authors of
books, it establishes a mechanism for giving one corporate entity rights
on orphan works that should be held by the public. This can easily be
extrapolated to orphan works in any media.
I briefly list my concerns below, and list some links to blogs. But this
email is a call to action. Members of the class that is part of the
class action suit (authors and copyright holders) can file objections
with the court by May 5. The court is holding its final hearing on June
11. Since I’m a member of the class (my book on metadata was published
by Elsevier, one of the publishers involved in the settlement), I can
submit an objection. However, my objection will focus on my concerns as
an archivist and librarian on how the settlement will impact archives
and libraries’ abilities to digitize and make available orphan works, a
process that was being worked out through legislation. If anyone would
like to sign my objection as a fellow archivist/librarian, email me your
interest. I’ll email you my statement to review once it is ready, and
you can decide then whether you’d like to sign it. If you’d like to
submit your own objection, the info on how to do so is here:
http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q20
<http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q20>
Note that a consortium of library organizations is filing an amicus
brief on the settlement:
http://www.libraryjournal.com/article/CA6640461.html
People can also write to the sponsors of the Orphans Works legislation.
It passed the Senate and is pending in the House. Could Stephen Leggett
give us an update on where it currently stands? Mary Beth Peters, U.S.
Register of Copyrights, said in her presentation at Columbia that her
office has not had one inquiry on the Google Settlement from any member
of Congress. You can alert the Senators and Representatives listed
here, unless Stephen recommends otherwise:
http://leahy.senate.gov/press/200804/042408e.html
My concerns in brief:
As part of the settlement, Google will establish a Book Rights Registry
(BRR). Authors of orphan works can assert their ownership through the
BRR. It’s estimated that 12% of orphan works will register, but 88%
won’t. If a work is not registered, Google can still scan it and make
it partially available through its subscription service (up to 20% of
the content). If the author later comes forward, they can’t file a
lawsuit against Google because Google is protected. It created a
mechanism for registering works as part of a class action settlement
that was approved by the court. Class action suits include “absent
class members.” In essence, Google is protected unless an author opts
out of the settlement.
Now let’s say that a library that is not a Google participating partner
digitizes an orphan work that has been made available by Google. They
put it on eReserves, or perhaps on their website, even if only available
to their campus. That library could be sued by Google since it is
impacting their sales. The library could also be sued by the copyright
owner if they appear, since the library doesn’t have the same
protections as Google. The settlement will impact libraries’ and
archives’ ability to do digital preservation of orphan works (the scans
created by Google are not even at print quality). Does the settlement
contradict Section 108?
The BRR is for Google’s benefit, and while the settlement provides
language that it can share the BRR with other entities, Google has “Most
Favored Nation” status. In other words, the BRR can’t give a competitor
a better deal than what it provides Google. I would argue that the
settlement should require Google to make the BRR available to the
public. I would even go so far as to say that Google should not be
allowed to post or use orphan works until Congress passes Orphan Works
legislation, so the establishment of the BRR follows the copyright law,
instead of the copyright law following the Google settlement.
I could say more, but others have said it far better! Here are some links:
_Blogs on the __Columbia__ conference:_
http://blog.librarylaw.com/librarylaw/2009/03/google-books-settlement-at-columbia-part-1.html
http://blog.librarylaw.com/librarylaw/2009/03/google-books-settlement-at-columbia-part-2.html
http://paulcourant.net/2009/03/15/orphan-works-legislation-and-the-google-settlement/
http://blogs.lib.berkeley.edu/shimenawa.php/2009/03/15/the-orphan-monopoly
The Google Book Settlement home page:
http://www.googlebooksettlement.com/
Best,
Linda Tadic
lindatadic@xxxxxxxxxxxxx <mailto:lindatadic@xxxxxxxxxxxxx>
Audiovisual Archive Network
and
Adjunct Professor, MIAP
NYU