Copyright Office Urges Moving Beyond ‘Ad Hoc’ Mass Digitization Projects
Among the U.S. Copyright Office’s recently released list of priorities was a promised analysis of the legal issues surrounding mass digitization projects, particularly in light of the litigation surrounding Google Books, HathiTrust, and others.
The office followed through, releasing on October 31 a 97-page “discussion document” in which it says that “there is sufficient information to undertake an intense public discussion about the broader policy implications of mass book digitization.”
The report raises questions about public policy goals of mass digitization projects; the interplay among library exceptions, fair use, and licensing; and the collaboration between nonprofit and commercial actors.
The report is an invitation for further discussion among all stakeholders about the place where existing copyright law intersects with new technologies. Here are a few highlights from the report, which also includes a number of appendices that examine foreign treatment of orphan works, current scanning projects, and collective licensing options.
An end to ad hoc projects
The report is not meant to be prescriptive, and it overflows with diffident qualifiers:
To the extent that a digitization project captures [copyrighted] books, Congress may want to consider whether the purposes and objectives of these projects or possible future projects are sufficiently important to the nation to warrant possible changes to the copyright law.
But it does make a definite nod in the direction of projects like the Digital Public Library of America (DPLA):
The next logical step for the Library [of Congress] and other leading U.S. public collecting institutions — subject to the availability of resources — is to move from a series of ad hoc projects to a strategic and comprehensive effort that includes prioritizing content, managing licenses with copyright owners, and coordinating navigation and points of access with other important institutions.
The DPLA is mentioned in the next sentence, and the report also says: “Congress may want to consider whether the nation’s federal cultural institutions – the Library of Congress, the Smithsonian Institution, and the National Archives – should have a specific role in developing a national framework for mass book digitization projects.”
Sections 107 and 108
The report discusses libraries and sections 107 (fair use) and 108 of the Copyright Act, and it does provide a few cautionary notes.
The report says that the large scale scanning and dissemination of entire books is “difficult to square with fair use.” Google had claimed that it was fair use to systematically digitize millions of copyrighted library books and offer snippets from those books via its search engine.
“At this time, the outcome of a fair use defense for any mass book digitization project is uncertain,” the report reads, while also pointing out that fair use is unique to the U.S., which means that for any mass digitization project that is global in nature “fair use may prove to be of limited utility.”
As for Section 108, which permits libraries and archives to make, without obtaining permission, limited reproductions of copyrighted works under specific circumstances, the report says that “The Section 108 exception does not contemplate mass digitization.”
Any review of mass book digitization would need to consider, if not compare, the activities that currently are, or should be, permissible for libraries under Section 108. Any licensing schemes to implement mass digitization should not supplant the activities that have long been or should be covered legitimately by a copyright exception. This said, licensing is likely to be a part of the mass digitization equation for libraries.
In 2012 the Office, as part of its priorities, will formulate a discussion document and preliminary recommendations on copyright exceptions for libraries.
The report also deals extensively with licensing options and orphan works. For the latter, it refers to the office’s own 2006 study, Report on Orphan Works, which has been the basis for proposed, but not yet passed, legislation. The office continues to maintain that if adopted, the legislation would “greatly improve access to copyrighted works.” But it notes that the proposed legislation “did not squarely address for the possibility of mass digitization projects,” and that Congress may want to do so now.
Library Copyright Alliance Releases Statement on Authors Guild-HathiTrust Lawsuit
The Library Copyright Alliance, which includes the American Library Association, the Association of Research Libraries, and the Association of College & Research Libraries, released a statement [PDF] today on the copyright infringement lawsuit filed by the Authors Guild and others against the HathiTrust digital repository and five universities.
Here is the statement, in full:
We are deeply disappointed by the Authors Guild’s decision to file a lawsuit, Authors Guild, Inc. et al. v. HathiTrust et al., against HathiTrust and its research library partners. The case has no merit, and completely disregards the rights of libraries and their users under the law, especially fair use. The HathiTrust and its partners have assembled an unprecedented digital resource that will ensure secure, long-term preservation of nearly 10 million volumes held in member library collections. The majority of these works are not available commercially and will disappear completely if not for library stewardship. We applaud the modest steps HathiTrust and its partners have taken to foster those “orphan” works whose owners have abandoned them to library care. The HathiTrust adds significant value to library collections in support of teaching, research, and learning, while respecting the law. It is deplorable that eight authors and three special interest groups are trying to dismantle this invaluable resource out of a misplaced fear of the digital future. We are confident the court will not look kindly on this shortsighted and ill-conceived lawsuit. Authors Guild President Scott Turow wrote earlier this year, “I count myself as one of millions of Americans whose life simply would not be the same without the libraries that supported my learning.” It is a shame that the Authors Guild fails to understand what Mr. Turow expressed so well, the vital role that libraries play in our cultural ecosystem.
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Is Babar an Orphan?
The University of Michigan (UM) Library is currently researching whether digitized works it has stored in the HathiTrust digital repository are orphans—works that are in-copyright but for which rights holders cannot be found. (Several other university libraries, including those of the University of California, Duke, Emory, Cornell, and Johns Hopkins, joined the orphan works project recently.)
UM has posted an online list of the works it believes to be orphans so far. After 90 days, if no rights holders come forward, those works will be made fully accessible online to UM students and faculty. Many of the works on the list are obscure—a 1949 typographer’s desk manual, anyone?—but a few are quite familiar. Case in point: a 1933 English translation of French author Jean de Brunhoff’s The Story of Babar, the Little Elephant (1931).
Now, the fictional character of Babar—an elephant whose mother is tragically shot by a hunter—is an orphan. But the idea that the popular children’s book was an orphan as well struck me as odd. After all, de Brunhoff’s heir, his son Laurent, is very much alive—indeed, he authored the latest Babar book, Babar’s Celesteville Games, published only last month.
I contacted UM’s lead copyright officer, Melissa Levine, to ask why Babar was on the list. She said it was because researchers could find no current information for its 1933 publisher, H. Smith and R. Haas. (The book’s current U.S. publisher is Random House.) However, in light of the questions its inclusion has raised, Levine said the book would be pulled from the list for further research.
Whether The Story of Babar gets taken in at the orphanage or not remains to be seen, but the system that UM came up with—publicizing lists of suspected orphan works so rights holders can weigh in—appears to have another useful purpose: it effectively crowdsources the research beyond the rights holders themselves.
Indeed, any informed people with Internet connections can assist the project by contacting UM with relevant rights information. Who better to help than librarians?
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