Copyright & the Digital Library 89 percent of librarians agree: © is one of the major challenges to building the digital library Denise Troll Covey Principal Librarian for Special Projects, Carnegie Mellon ICUDL Conference Hangzhou, China – 2005

Overview Obeying copyright law Changing copyright law Operating in a permission culture Changing copyright law Investigating orphan works Challenging copyright law Examining Google Print for Libraries

Obeying Copyright Law What does it take to acquire permission to digitize & provide open access to books? Feasibility study – random sample (1999–2001) Is it possible? What are the problems? Posner project – fine & rare books (2002–2003) Change method to increase success & lower cost Million books project (2003–2004) Change strategy to acquire permission for more books per transaction dollar

Results Per Publisher Total 209 publishers 104 publishers MBP = 4% not applicable + 7% not at this time = 11% other Total 209 publishers 277 titles 104 publishers 284 titles 364 publishers cited in BCL

Closed Negotiations Permission 57 publishers 45 publishers MBP = Still negotiating 39%; Closed negotiations = 55% from publisher + 16% three strikes rule Permission 57 publishers 45 publishers 84 publishers 66 titles 178 titles 53,000 titles Cost per title $200 $78 $0.69

Results Per Publisher Type Content Response Permission Commercial Most Least Scholarly Slightly > commercial University Special FEASIBILITY Commercial Least Scholarly Most Same % as feasibility University Least – same % as feasibility Special POSNER University presses: often © reverts to author Commercial Least Scholarly Most University Special MBP Lower response & success rates overall

Million Book © Permissions

Changing Copyright Law U.S. Copyright Office studying orphan works Tentative definition: copyright owner can’t be found Does law impose “inappropriate burdens” on users? Are orphan works “being needlessly removed from access & their dissemination inhibited”? Should something be done to address the problem? Initial comments due March 25, received 721 Reply comments due May 9, received 146 Senators Orrin Hatch & Patrick Leahy Report to the Senate Judiciary Committee Notice of Inquiry posted to the Federal Register January 26 Initial comments due March 25 – Reply comments due May 9 Public hearings July – August Report due by the end of the year

Comments & Public Hearings 721 initial comments & 146 reply comments Problem warrants a legislative solution Public hearings Washington DC (38) & Berkeley, CA (29) Topics of discussion Identity of orphan works & use of registries Consequences of an orphan works designation Reclaiming orphan works International considerations

Contours of Public Comments 19% with analysis 38% Objections Encourage infringement - Infringe exclusive rights of creators & take away their control of their work Favor corporations Undermine the economy - Threaten the livelihood of photographers & illustrators Encourage the “free culture” movement

Reactions & Interactions Criteria of viable definition drive solution Case–by–case approaches Compulsory licensing Reasonable effort accommodation Criteria of viable solution drive definition Categorical approaches Default licensing (Creative Commons) Exemption for cultural heritage

Estimates based on results of feasibility study Issue of presumption of © ownership

Case–by–Case Reasonable Effort Does reasonableness vary based on Type of use? Amount of work used? Type, publication status, or age of work? User’s skill & resources? Difficulty of developing sector guidelines Uncertain defense of infringement Level of risk contingent on remedies Self–censorship & gatekeeping Cost & risk prohibitive for large projects Disadvantages copyright owners by providing no way for them to signal that their work is not orphaned (what’s “reasonable”?) Disadvantages users by providing only a defense in litigation Will not scale to accommodate the needs of libraries, archives, & museums Allowing unauthorized use based on “reasonable efforts” will only encourage laziness & offer an excuse for infringement

Exemptions & Default Licensing Threshold requirements are contentious Age or print status of work? Difficult to determine Non–profit use only? Basis for disallowing for–profit use Registration to opt out of orphan works regime? Burden on © owner International issue of formalities © owner loses control & adequate compensation International issue of full enjoyment & exercise Free use or low–fee use (depreciation of © value)

Register Works & Ownership Voluntary / mandatory = international issue of formalities Consequences of NOT registering Incentive for user to check registry Default licensing = orphan Reasonable effort = keep looking Incentive for © owner to register Limited remedies = currently not working Burden on © owner Benefit preservation, access, & use

Register Searches & Uses Voluntary / mandatory Accuracy, scope, & ease of use / piggybacking Consequences of registering Incentive for user to register Reasonable effort approach = helpful in litigation Incentive for © owner to check registry Find users & deny or grant permission (compensation) Burden on user & © owner No benefit for preservation, access, & use to check registry – unlikely to do

Reclaiming: How Limit Remedies? Different remedies for different users & uses? Take–down option for non–profit online access? No injunctions for other users & uses? Compensating the © owner Issues with reasonable effort approach Who proves unreasonableness? No attorney fees? No statutory damages? Cap? Reasonable royalty? Who determines fee? How? How budget for large projects? Issues with default license approach Default fee could be too low – incentive to register? Payment for past or ongoing use? Permission often given for free Who proves (un)reasonableness? How? Reasonable royalty could be less than cap Cap could be defacto / compulsory license Low cap could constitute immunity for refusing to pay PRO Limit only what copyright owners can do or recover in cases of infringement, not their exclusive copyrights Limiting the remedies available to copyright owners is consistent with international treaties & gives copyright owners some recourse in cases of infringement. CON Who decides what users qualify & what remedies should be available? Necessarily retains some uncertainty Disputes & litigation will happen; establishing objective criteria for reasonableness is impossible Remedies that create de facto compulsory licenses for unauthorized use of orphan works could be compatible with international treaties Deciding value will be arbitrary Cap the cap? Burden of proof in litigation Who determines (un)reasonableness? How? INJUNCTIONS Changeable / unchangeable uses Threat to investment Safe harbor period for use

The Solution Must be fair – recognize … Must be cheap & easy The value of orphan works User rights & investment © owners can free ride on user creation of market Must be cheap & easy Reasonable effort = most difficult to implement, least likely to solve the problem, but seems to have the most support Exemption = easy, will solve some aspects of the problem, & seems to have some support Default licensing = could solve the entire problem, but seems to have little support Perhaps owners should pay users Provide incentive for © owners to become locatable

Compelling Metaphors Upside down pyramid on a funnel Copyrighted works If many chickens come home to roost, the solution was poorly designed. Orphan works used Copyright owners surface Don’t embroider the existing situation. Do something to benefit the citizenry.

Challenging Copyright Law Google Print Library Project Digitize & provide Google access to public domain & copyrighted books in participating libraries View full text of public domain books View snippets of copyrighted books Issues Can Google create & operate a library? Is Google breaking copyright law? Can Google harm libraries?

Why Google Is Is Not a Library Selection criteria for materials No obligation to scan designated books Standards & privatization Proprietary – no commitment to standards, interoperability, stewardship or preservation Restrictions on use & monetization No saving or printing of any book pages Obligation to generate revenue for stockholders Right to copy, license, & sell digitized books Privacy & confidentiality No professional ethic to protect users Patent pending on payment service

Is Google Breaking © Law? Can for–profit digitize & provide access to books without permission? Is displaying snippets fair use? Do benefits out weigh the harms? Does it matter? Will Google own the © to the digitized books? 1923 lower boundary 1963 upper boundary © status of unique works in participating libraries

Will Google Help or Harm Libraries? Will Google Library Project trigger investigation? Fair use & current exemptions for libraries Risks & benefits of online access © ownership & status of digitized works Will results be similar to study of first sale doctrine? A practice appropriate in the analog world is not appropriate in the digital environment Will social benefits prevail over owners’ control? Will requiring owners to opt out (register) be acceptable for Google Print & orphan works? BENEFITS - Defenses against copyright infringement © owner registration / notification to opt out / take down

Conclusions Permission culture makes it impossible to create a universal digital library of books as expressed Could circumvent law & achieve important goals by computer generating synthetic works & translations Would that preserve cultural & intellectual heritage? Orphan works solution could impact digital library Predict adopt reasonable effort & maybe library exemption Advocate default licensing Google Print could drive important cultural change But will be trap for unwary users