Toward a Universal Digital Library

But Copyright Law Provides Barriers to Mass Digitization of the World's Books

Paula Samuelson, a law professor at UC Berkeley, wrote an OpEd piece for the Los Angeles Times on May 1 regarding the legal problems acting to block mass digitization of the world’s books. Google has been working on just such a database since 2002. It appears possible to develop and share this information for books published before 1923, but tens of millions of more recent books retain copyright priveleges even if long out of print.

It is estimated that attaining the rights of the copyright for these books would cost about $1,000 per book, though many books are "orphan works" with unknown or unlocatable copyright owners.

Google ran into trouble in 2005 when the Authors Guild and a group of five publishers filed lawsuits claiming that Google’s scanning of these books was a copyright infringement. Google contended that offering indexes and snippets was "fair use" rather than infringement. But the potential liability for infringement could have run into the billions of dollars.

Google settled in October of 2008. Google could keep scanning books and help re-commercialize those that were out of print by running ads next to the search results. Google could have displayed up to twenty percent of book contents in search queries. But this settlement collapsed in March of 2011. The judge ruled that this scheme was unfair and would create "a de factor monopoly over unclaimed works." The judge also noted that Congressional legislation was an appropriate approach for resolving this issue rather than litigation.

Samuelson writes:

"But the dream of a universal digital library lives on. Now a coalition of libraries and archives has come together to create a Digital Public Library of America to fulfill the original vision of a digital library for all. It could well be that an effort without commerce in the mix will have an easier time of it.

"A broad consensus already exists to remove copyright obstacles to orphan works. There is also growing interest in mass digitization of out-of-print works. The arguments for increased access are compelling: These books aren't producing any revenue for copyright owners, and most of them are unlikely to be reprinted. Libraries already own copies of many of them and want to make them available digitally to their communities. And rights holders can always opt out of a library mass-digitization project."In 2008, The U.S. Copyright Office proposed the Orphan Works Act of 2008, which passed the Senate but died in the House. Maria Pallante, currently head of the Copyright Office, has stated her interest in renewing this legislative approach.

France has passed legislation allowing digitalization by libraries of books which are under copyright but out of print. Germany is considering similar legislation. The European Union is examining ways to grant greater access to orphan works. The national libraries of Japan and Norway have been authorized to begin mass-digitalization projects, even for works still under copyright.

Pamela Samuelson notes the tremendous advantage such a digitalized library could provide for research and urges the U.S. not to lag behind in this move to modernize research and open wide library resources to the public. Her suggestions are that copyright law be revised so that "fair use" includes non-profit library circulation of orphan works to patrons for noncommerical purposes. She also advocates Congressional legislation limiting damages and injunctions for other digitalized orphan works. Finally, she favors a collective licensing program under which the Copyright Office allows use of works still under copyright but out-of-print.

Summarized from:

http://www.latimes.com/news/opinion/commentary/la-oe-samuelson-google-books-and-copyright-20120501,0,2442760.story

Pamela Samuelson is a professor at the UC Berkeley School of Law and faculty director of the law school's Berkeley Center for Law & Technology.