Monday, September 19, 2011

Crowd-Finding the Orphan Books

A solution to the orphan books problem won't be delivered by a settlement of the Google Books lawsuit anytime soon, we learned on Thursday. "Orphan" works are ones subject to copyright restrictions, but for which rights holders can't be found or determined.  A proposal to open them up via settlement of a class action was rejected by Judge Denny Chin in March of this year. There was still hope, however, that a settlement between the parties would find a way to implement a "Book Rights Registry" that, while falling short of eliminating the orphan works problem, could go a long way towards making rights holders easier to find. I was present at last week's status conference where the parties met with Judge Chin to report their progress towards a new settlement addressing Judge Chins concerns, or failing that, a timetable for renewed prosecution of the lawsuit.  Although the lawyers for the publishers seemed to be optimistic about a settlement, Michael Boni, the lead attorney for the "authors" talked as though the their part of the lawsuit would go to trial.
No orphans here, just books being deeply
discounted at a Borders going-out-of-business sale.
Note the blurb on the book at the bottom.

While there are important copyright issues at stake in the lawsuit, I've been most interested in the proposed book rights registry. A book rights registry would compile and maintain a database of rights holders, making it easy (and cheap!) to contact, query and pay rights holders for uses that are would not be allowed without their permission or provided for by fair use. In the current environment, it can cost hundreds of dollars to clear the usage rights for an in-copyright book, even without paying anything to rights holders. With a publisher-only settlement and continued prosecution now likely, my guess is that the book rights registry is either dead or years from being a reality.

It's ironic that the past week demonstrated how badly a book rights registry is needed. HathiTrust, the research library consortium formed to manage the scans of library books generated by the Google Books program, announced plans to expand access to a small number of works that they deemed to be orphans. The Authors' Guild then sued HathiTrust to block the expanded access.

The legal experts thought the suit "borders on the frivolous", due to serious problems with the "standing to sue" issue. Only copyright owners have standing to sue to enforce copyrights in the US, and none of the rights holders were parties to the Authors' Guild suit.

A funny thing happened on the way to the courtroom, though. Under intense scrutiny, one of the purported orphans turned out to have easy-to-find parents. The Authors Guild gleefully reported that the day before filing the suit, they were able to locate a rights holder "with a few minutes of googling". This report seemed to indicate incompetence all around, HathiTrust for neglecting the few minutes of googling in their orphan-identification workflow, and the Authors' Guild legal team, for failing to address their "standing to sue" problem with "a few minutes of googling".

A subsequent blog post from the Authors Guild was a revelation. It turns out that the Authors' Guild didn't really need a registry to find rights holders. By asking for help from their large number of blog readers, they were able to identify rights holders for many more of the purported orphan works. It seems that when large numbers of people are interested to find a rights holder, it's not so much of a problem. Of course a rights registry would help, but even the best registry can't fix everything.

I started following the Google Books case over two years ago because I thought it was important to increase access to all sorts of in-copyright works. What I learned in the process made me realize that a cookie-cutter, one-size-fits-all solution would never work, let alone pass judicial scrutiny. An equitable arrangement for academic authors would treat authors who write for a living unfairly; and vice versa. Authors in other countries would be ill-served by a process devised with American authors in mind. I realized that access to the works most important to book lovers would only happen with lots of reader support. And that realization has led to the work at Gluejar on Unglue.it, currently in the implementation stage.

Unglue.it will address "orphan works" the same way that the Authors' Guild has done in its recent blog posts. In addition to working with rights holders that want to offer creative commons licensing of ebooks to the public (ungluing them, in our parlance), we'll give users the opportunity to "wish" for the ungluing of any book that's been published. If a lot of users wish for a book, we'll check into who owns the rights, and give them a chance to make an offering. If we can't find the rights holder, we'll ask the people doing the wishing for help. If 10,000 people ( or even a dozen, for that matter) care about J.R. Salamanca's The Lost Country, they'll do a lot more than a few minutes of googling. They'll be knocking on his door and sending him postcards from Fiji.

When a lot of people care about a book, they'll have the combined economic power to do a lot more than opening a book to snippeting and search. We'll ask the rights holders for their price to give their book as an ebook to the world under a non-commercial creative commons license (CC BY-NC-ND). That will make it possible for everyone, everywhere, now and long into the future, to use the book the way the creator always intended- to read, to learn and to enjoy.

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