Jan Constantine, General Counsel of the Authors Guild, testified before the House Judiciary Committee yesterday afternoon on mass digitization of books and so-called orphan works. Those topics, of course, are at the heart of two Guild lawsuits, Authors Guild v. Google and Authors Guild v. HathiTrust. An advance copy of Jan’s written testimony is available on their blog.
Here are three highlights:
1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books. Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.
Here are the key components:
A. Authors get paid for the uses, naturally.
B. Licenses would be non-compulsory. Authors get to say no.
C. Licenses would cover out-of-print books only. No disrupting commercial markets.
D. Display uses only. No ebooks or print books.
E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.
Such agencies are already in place around the world, licensing limited photocopy uses of books. They all license orphan books as part of the package.
There are millions of out-of-print copyrighted books. Making these books available would have an enormous societal benefit and bring our nation’s great research libraries to computer screens at our smallest colleges and most remote rural libraries.
2. A Copyright Office hearing on February 20, 1963, is eerily prescient about what was to come. (Irwin Karp, legendary and curmudgeonly counsel for the Authors Guild and Authors League was there.) It’s as if everyone saw Google and its mass digitization of books under the banner of fair use coming. Not only that, they addressed it in legislation - it was an early hearing for what became the 1976 Copyright Act.
3. Fifty years ago, people knew how to find authors and other rights holders of books, they didn’t just declare out-of-print books to be “orphans”. UMI, Bell & Howell, and 3M raced to see which company could pre-clear the most books for the new print-on-demand technology. UMI boasted it would “go to Timbuktu” to clear rights.
And, get this: Remember “Orphan Row,” our term for the list of 100-plus books that HathiTrust was preparing to release in ebook form? UMI cleared the rights to seven of them decades ago, long before the Internet made searching for rights holders easy. It’s amazing what you can find when you really want to find it.