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.
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.
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.
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.