Unconditional Copyright Removing the Camouflage Denise Troll Covey Principal Librarian for Special Projects Erin Rhodes Copyright Permission Assistant Presentation to ALA Lobbyists November 15, 2005

“Unconditional Copyright” No registration No renewal –Fewer than 15% of copyrights were renewed when renewal was required No circumvention –Even if technologies or licenses disallow public rights “Limited” duration –Published = 95 years or author +70 –Unpublished = 120 years

U.S. Copyright Camouflage Difficult to determine copyright status & ownership –Copyright laws are complex –Office of Copyright keeps no records of ownership –Publisher records are not complete or easily accessible Estimate 92% of books ever published are still in copyright, but out of print –No revenue for copyright owners –No easy access for potential readers

Seeking non-exclusive permission to digitize & provide open access to copyrighted books 1999–2001Feasibility study 2002–2003Posner study 2003–2004Million book project Research

Feasibility Study 1999 – random books in the library catalog 95% (351) were copyright protected 21% (76) were eliminated from the study –Mistakenly cataloged as books (10%) –Third-party copyright ownership (11%) Final sample was 277 titles (209 publishers)

Feasibility Study Intermittent labor – 4 different people Process –Initial request letters – sent 278 –Follow-up request letters – sent 246 Over 60% of publishers received 2 nd or 3 rd letter Subsequent letters sent months later Did not track transaction costs

Permission granted Permission denied No response Not located 19% 27% 30% 24% 21% 28% 23% 27% Mistakenly requested permission for 4 out of copyright books 1 permission granted; 3 denied Data NOT included in graph Overall Results

Permission granted Permission denied No response 78% publishers contacted (81% of the titles) 34% 37% 30% 36% 30% 35%

55% 45% 46% 54% 51% publishers responded (53% of the titles) Average 101 days for permission granted Average 124 days for permission denied Permission granted Restrictions applied to 68% of titles Permission denied

Restrictions Applied 54% access restricted to Carnegie Mellon users 23% display full citation 22% no 3 rd party material 15% provide copy 15% not for sale 8% license to provide access expires 6% fee required 6% individual use only 3% permission to scan expires

Analysis by Print Status 73% sample was out of print books –More difficult to locate, less likely to respond, but more likely to grant permission if they responded In print Out of print Response rate based on contacts Success rate based on responses

Domestic Foreign 19% sample was foreign publications –Difficult to locate, but more likely to grant permission Analysis by Publisher Location

Scholarly associations University presses Commercial publishers Museums & galleries Analysis by Publisher Type 68% sample was published by commercial publisher –Most difficult to locate, least likely to respond & least likely to grant permission

Conclusions It is possible to secure copyright permission to digitize & provide open access to books Future studies –Use dedicated labor –Track transaction costs –Experiment to increase response & success rates –Improve data management

Posner Project2002 – fine & rare volumes in the Posner Collection 26% (284) were copyright protected (104 publishers) Associated archival documents –Correspondence –Newspaper clippings –Book catalogs

Initially intermittent labor – one person –Sent 60 letters, but did no follow up Dedicated labor May through Oct 2003 Process –Initial request letter – sent 174 –Follow up phone calls or – 159 Tracked transaction costs Posner Project2002 – 2003

Still negotiating Permission granted Permission denied No response Not located 5% 13% 20% 61% 31% 5% 18% 43% 1% 3% Mistakenly requested permission for 74 out of copyright books All granted permission Data NOT included in graph Overall Results

69% publishers contacted (87% of the titles) 6% 23% 71% 7% 28% 65% Permission granted Permission denied No response

Permission granted Restrictions applied to 29% of titles Permission denied 25% 75% 30% 70% 64% publishers responded (82% of the titles)

Comparative Results Feasibility (titles) Posner (titles) Posner (publishers) 66% 45% 93% 75% Response rate based on contacts Success rate based on responses

Comparative Analysis of Restrictions Posner study Feasibility study

Revised, more informative letter Prompt follow up calls or The age & nature of the Posner Collection Copyright holders could see the quality of the work on the web Attribute Increased Success

Analysis by Print Status Not yet done Issue learned from Million Book Project –Librarians consider book to be out of print if exact work is no longer available in print –Publishers consider book to be out of print if no newer edition is available in print

Domestic Foreign Analysis by Publisher Location 29% content was foreign publications –More difficult to locate, & slightly less likely to respond or to grant permission

Analysis by Publisher Type Scholarly assoc. University press Commercial Authors & estates Special publishers Unknown Special publishers are most likely, commercial publishers least likely to grant permission Authors & estates or units unknown own most of the content – difficult or impossible to locate

Transaction Costs $ 10,808FTE labor $ 379Phone calls $ 100Paper & postage $ 11,287TOTAL May 2003 – October 2003 Does not include legal fees, administrator time, or cost of Internet connectivity or database creation. $78 per book/volume 174 letters 159 follow up calls or

Consultations with Legal Counsel WIPO signatories do not have the same copyright laws (interpretations & practices) –Eventually abandoned seeking permission for foreign works because legal counsel wanted to examine every title Associated archival documents –Fair use to digitize correspondence from book dealers –Perhaps fair use to digitize clippings –Book catalogs are copyright protected

Problems Seeking Permission Determining copyright status Identifying & locating copyright holders Publishers –Slow to respond –Don’t know what they published –Don’t know what rights they have –Afraid of open access & lost revenue

Million Book Project2002 – 2004 Include 100,000+ U.S. copyrighted books Initial focus was Books for College Libraries –12,300 (25%) are definitely still in copyright –35,500 (71%) require checking copyright renewal records Initially intermittent labor Dedicated labor started November 2003 Changed process to reduce transaction costs –Books for College Libraries as approval plan for publishers

Request Letter & Strategy Educate –Users want to find information online, but use print –Open access increases use, even use of older works –Open access does not decrease sales –Open access can increase sales –Currently no revenue from out of print books

Request Letter & Strategy Ask for non-exclusive permission to digitize & provide open access to –All out of print, in copyright titles –All titles published prior to ____________ –All titles published # or more years ago –List of titles they provide No restrictions allowed

Request Letter & Strategy Assure –Follow preservation standards & copyright law –Restrict print & save to only one page at a time Give images, metadata, & OCR –Generate revenue from fee-based services –Were seeking print on demand vendor, but Indian government objects to commercial partners Then prompt follow up

16% 4% 61% 3% Permission granted Permission denied Not at this time Still negotiating No response (3 strikes & you’re out) Preliminary Results

11% 44% 45% Permission granted Permission denied Not at this time 19% university presses 6% scholarly associations Completed Negotiations

Comparative Results Feasibility (titles) Posner (titles) Posner (publishers) MBP (publishers) Completed negotiations 66% 45% Response rate based on contacts Success rate based on responses 97% 45%

17% 70% 7% Titles # or more years ago Titles prior to _______ Specified titles All out of print titles Analysis of Permissions Granted 6%

Analysis by Publisher Type Special publishers, authors & estates are most likely to grant permission Commercial publishers & university presses are least likely to grant permission Scholarly assoc. University press Commercial Authors & estates Special publishers

Preliminary Transaction Costs $ 28,582Labor $ 483Phone calls $ 216Paper & postage $ 29,281TOTAL Nov 2003 – Sept 2004 Does not include legal fees, administrator time, or cost of Internet connectivity or database creation.  $0.62 per book Roughly 47,500 titles 640 letters (25% in ) 582 follow up calls or

Costs including Administrator Time $ 31,027Labor $ 533Phone calls $ 220Paper & postage $ 41,780TOTAL Nov 2003 – Sept 2004 Does not include legal fees, cost of Internet connectivity, database creation, or administrator time on grant proposals.  $0.88 per book Roughly 47,500 titles Administrator – 889 messages (5 min) – Guess 10 letters – Guess $50 phone calls – Guess 300 hours data analysis, presentations & publications

University Presses Began with university presses –Preliminary analysis of feasibility study data indicated they were more likely to grant permission Snags –Copyright often reverts to author when books go out of print –More recent books will never go out of print because of print on demand contracts –Third party copyright ownership issues –13 presses will consider titles WE specify

Experiments Compiling lists of titles – Books for College Libraries –6 minutes per title to verify citation & copyright status Using Lesk’s copyright renewal records database –Not cost effective to verify print status –List of 300 titles takes 30 hours to prepare Locating authors or estates – Authors Registry –Charged $2.50 fee per author/estate found –Same day response (25 requests) –Found 52% –92% accuracy rate

Kahle v. Ashcroft – Supreme Court Challenge U.S. copyright system –No records of copyright ownership –Denies public access to orphaned works without providing any benefits Submit examples of how barriers to using out of print books burden your work

Public Domain Enhancement Act Copyright holders –Pay small fee ($1.00) 50 years after publication & every 10 years thereafter to retain copyright –Provide contact information U.S. Copyright Office –Handles financial transactions –Creates public database

Thank you! Denise Troll Covey Principal Librarian for Special Projects Carnegie Mellon