In my previous post, I worried that the Google Books settlement might fall apart in the face of opposition from influential parties like the Copyright Office, and that such a collapse might deprive the public of meaningful access to millions of out of print books.
Not everyone sees it that way. I’ve seen various suggestions of alternatives to the settlement for making these books available. In this post, I’ll describe some of the suggested alternatives, explain why they don’t seem to me as likely to succeed on their own, and discuss how some of them could still go forward under a settlement.
Compulsory licenses
Both the Open Book Alliance’s court filings and the Copyright Office’s testimony mention the possibility of compulsory licensing, which essentially lets people use a copyrighted work without getting permission, provided that they meet standard conditions determined by the government. Compulsory licenses already exist in certain areas, such as musical performances and broadcasts. If I want to cover a Beatles song on my new record, I can, as long as meet some basic conditions, including paying a standard royalty. The (remaining) Beatles can’t hold out for a higher rate, or say that no one else is allowed to cover the recordings they’ve released.
The Google Books settlement has some similarities to a compulsory license, but with some important differences, including:
- Book rightsholders can choose to deny public uses of their work, or hold out for higher compensation, which they generally can’t do under a compulsory license regime. (They have to explicitly request this, though. So it’s really what one might call a “default” license.)
- The license has been negotiated through a court settlement rather than Congressional action. (This was one of the main complaints of the Copyright Office.)
- The license given in the settlement is granted only to Google, not to other digitizers. (This has justifiably raised monopoly concerns.)
I do have a problem with the last difference as it stands. I’d like to see the license widened so that anyone, not just Google, could digitize and make available out of print books under the same terms as Google. But there are various ways we can get to that point from the settlement. The Book Rights Registry created by the settlement could extend Google-like rights to anyone else under the same terms, as the settlement permits them to do. The Justice Department could require them to do so as part of an antitrust supervision. Or Congress could decide to codify the license to apply generally. (They’ve done this sort of thing before with fair use and the first sale doctrine, both of which originated in the courts.)
If the settlement falls apart, though, negotiation over an appropriate license has to start over from scratch, and has to persuade Congress to loosen copyrights for benefits they might not clearly see. As I suggested in my previous post, Congress’ recent tendencies have heavily favored tightening, rather than loosening, copyright control. And I haven’t yet seen a strong coalition pushing for laws granting compulsory (or default) licenses that are as broad as would be needed.
For instance, the Open Books Alliance’s amicus brief suggests the possibility of a compulsory license, but only as “but one approach”, and that suggestion seems as much aimed at getting hold of Google’s scans as licensing the book copyrights themselves. Their front page at present shows no explicit advocacy of compulsory copyright licenses. Perhaps they will unite behind a workable Google Books-style compulsory license proposal in the future, but I’m not counting on that. (Update: Just after I posted this, I saw this statement of principles go up on the OBA site. We’ll see what develops from that.)
The Copyright Office’s congressional brief also mentions but tries to damp down the idea. It repeatedly characterizes compulsory licensing as something that Congress only does “reluctantly” and “in the face of marketplace failure”. But despite its strong words on other subjects, it does not appear concerned over whether we in fact have a marketplace failure around broad access to out-of-print books.
Orphan works legislation
The Copyright Office filing also suggests passing orphan works legislation (as have various other parties, including Google). An orphan works limitation on copyrights would be nice, but it’s not going to enable the sort of large, comprehensive historical corpus that the Google Books settlement would allow.
As Denise Troll Covey has pointed out, the orphan works certification requirements recommended in last year’s bill, like many other case-by-case copyright clearance procedures, are labor-intensive and slow, and may be legally risky. (In particular, the overhead for copyright clearance, not including license payment, can be several times the cost of digitization.) Hence, these methods are not likely to scale well. And they would not cover the many out-of-print books that aren’t, strictly speaking, orphans. I don’t consider it likely that a near-comprehensive library of millions of out-of-print 20th century books will come about by this route alone any time soon.
Even so, despite its limited reach, last year’s orphan works legislation was stopped in Congress after some creator organizations objected to it. Some of the objectors, including the National Writers Union and the American Society of Journalists and Authors, are now members of the Open Book Alliance, which makes me wonder how effectively that group would act as a united coalition for copyright reform.
Private negotiation
Some critics suggest that Google and other digitizers simply negotiate with each rightsholder, or a mediator designated by each rightsholder. It’s possible that this actually might work for many future books, if authors and publishers set up comprehensive clearinghouses (like ASCAP and Harry Fox mediate music licensing). If new books get registered with agents like these going forward, with simple, streamlined digital rights clearing, private arrangement could work well for future books both in-print and out-of-print. Indeed, Google’s default settlement license privileges don’t apply to new books from 2009 onward.
But it’s much less likely that this will be a practical solution to build a comprehensive collection of past out of print books from the 20th and early 21st century, because of the sheer difficulty and cost of determining and locating all the current rightsholders of books long out of print. The friction involved in such negotiation (involving high average cost for low average compensation) is too great. Without the settlement and/or legal reform, we risk having what James Boyle called a “20th century black hole” for books.
Copyright law reform
As James Boyle points out, it would solve a lot of the problems that keep old books in obscurity if books didn’t get exceedingly long copyrights purely by default. It would also help if fair use and public domain determination weren’t as risky as they are now. I’d love to see all that come to pass, but no one I know that’s knowledgeable on copyright issues is holding their breath waiting for it to happen any time soon.
Moving forward
As I’ve previously mentioned, the settlement is imperfect. It may well need antitrust supervision, and future elaboration and extension. (And I’ve suggested some ways that libraries and others can work to improve on it.) It’s still the most promising starting point I’ve seen for making comprehensive, widely usable, historic digital book collections possible. I hope that we get the chance to build on it, instead of throwing away the opportunity. In any case, I’d be happy to hear people’s thoughts and comments about the best way to move forward.
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Wait, is compulsory licensing of music actually statutorily enforced? I thought it wasn’t, it only applied to artists who had joined ASCAP or similar organizations which would license things on their behalf. Ie, it wasn’t really ‘compulsory’ at all, you can do that with the Beatles, cause the Beatles are represented by ASCAP or BMI or whoever, who let you do that with all their artists.
If I’m right, this IS kind of the same thing as the Book Rights Registry, isn’t it? Except for the fact that the ‘opt out’ nature of the class action settlement means that for historical publications, they’re ‘in’ without asking to be. (going forward, they’d have to ask to be). But the Book Rights Registry kind of IS like an ASCAP for books — except they haven’t promised to license to all and sundry on the same terms, like ASCAP etc does.
Yes, the compulsory license for cover songs is statutory. It’s in section 115 of copyright law, and dates back (with modifications) to the days of player pianos.
But you’re right that the Book Rights Registry could serve as an ASCAP-like clearinghouse for general book rights. That’s what the settlement envisions for old out-of-print books, and it’s a natural extension for them to offer those same services for new books, should copyright holders decide to have them represent them. Whether or not they *will* generally serve that role going forward, or whether someone else will, remains to be seen. The BRR is a creature of the settlement, though (and is partly funded by its proceeds), so if the settlement did fail, it’s not clear anything like it would exist.
Though the Department of Justice’s filing last night, which gives qualified endorsement to the settlement process if not to all the current terms of the proposal, makes me more hopeful. I may write more on this later, if it seems useful.
Hmm, I’m still confused about music compulsory licensing. I guess that’s why I’m not a lawyer.
Wikipedia (http://en.wikipedia.org/wiki/Compulsory_license#Compulsory_Licensing_of_Copyright_in_the_US) suggests that the compulsory license lets me make a recording of my _own_ performance of someone elses musical work. But that there’s no compulsory license for playing someone elses recording on the radio, for making copies of someone elses recording, or even for a public performance by me of someone elses musical work.
Do you think that’s wrong? (Certainly wikipedia has been known to be wrong).
But I guess this is kind of a side issue here. I’m just curious.
Hi John,
Two comments:
1. “such a collapse might deprive the public of meaningful access to millions of out of print books.” Well, no, not unless you want to consider the current access through libraries to print copies meaningless. Yes, I realize that enhanced access through electronic means would be a wonderful thing, but not getting everything you want doesn’t mean you have nothing.
2. I could probably sum up most of your argument above as ‘A compulsory licensing scheme might help solve this but Congress is unlikely to take such action; Orphan works legislation might help solve this but Congress is unlikely to take such action; and copyright law reform might help solve this but Congress is unlikely to take such action. Which leaves us with private, one-on-one negotiations with rights holders, and in many cases we can’t identify them.’ I hate to say it, but this ends up being a profoundly anti-democratic argument. I’m well aware of the fact that there are powerful interests lined up on the side of copyright holders and that they hold significant sway with Congress, but Google isn’t exactly lacking resources itself, and if it chose to actually try to work to achieve legislative action to weaken copyright and make Google Book Search an unquestionably legal enterprise, I suspect it would have a lot of allies. Hoping that the settlement will solve our problems is effectively hoping for legislation from the bench. I think we would all be better off if instead the arguments for weakening copyright were made loudly, publicly, in the legislature, and we had a real public debate about what balance should be struck on intellectual property.
I got into this profession specifically because I wanted to help in the process of using electronic media to help put information in the hands of people who wouldn’t otherwise have it, but *how* we do that socially is far more important than how we do it technically, and I think the Google settlement isn’t the right approach. Much as I want to see the types of service Google is planning on offering, I sincerely hope the settlement fails, and that they lose in court, because then there may actually be some impetus to try to swing public opinion around to fixing what is clearly a broken copyright regime.
Jerome: Thanks for your thoughts.
On your first comment, I’m reminded of a joke I heard somewhere about how technophobic librarians might have designed a web search engine, before they became commonplace: You’d write down your query, drop it in a slot, and a few days later get a list of hits in the mail. Do you have access, in theory, to a search engine under these conditions? Yes. Is it access in a very meaningful sense? Not really.
Similarly, lots of out of print books are not accessible to many users in a meaningful way. If I want a look at a book that’s not anywhere near me, I might not actually have to hop on a plane and hope, as Sergey Brin suggests in a recent NYT editorial, but I might have to fill out a slip of paper, drop it in a slot, and wait a couple of weeks (and possibly pay a fee) for inter-library loan to go through, just to get a peek at it. In practice I’m not going to do this very often. But if I can get a quick look at it instantly online, that’s much more useful to me. (And even if I can’t see all of it without paying, the preview is often enough for me to see whether this is a book then worth paying and/or waiting a couple of weeks for. Basically, I get a much quicker, broader view of literature that might be useful to me.)
Regarding your second comment, I actually *do* want Congress to take action to free up out-of-print books in a useful way. But I think that they’re more likely to take the right action (and broad coalitions are more likely to form to push them to do it) if there’s a compelling working example of how it benefits people, than if there isn’t. (See my earlier post, on opportunities you see vs. ones you don’t.)
As I noted in my posts, the courts have established prior rights and benefits for the public (such as fair use and first sale) without waiting for Congress to act. (Congress then codified these rights later on.) I don’t assume that the way in which those rights were gained was “anti-democratic” simply because the legislature didn’t act first. Likewise, if the court and the settling parties are the first to grant rights to out of print books in this instance, I don’t see that as fundamentally anti-democratic either. (Especially since it would not preclude Congress from *either* codifying or overriding them through later statutory action.)
I understand there is some legal debate over whether a court has the authority to approve a settlement of this type. I’m not a lawyer, so I don’t claim to have the definitive answer to this question myself, but I’m content to let the court system decide whether or not it can approve the settlement. (I’ve certainly seen a number of other examples of courts saying “nope, we can’t do this”.) Assuming that class action *is* a legally appropriate means of reaching a deal like this, I see it as a promising first step towards a more sensible copyright policy overall.