Transcript LEGISLATION TO ENABLE DIGITIZATION OF LIBRARY COLLECTIONS Pamela Samuelson, Berkeley Law Columbia Conference on Collective Licensing Jan.

LEGISLATION TO ENABLE
DIGITIZATION OF LIBRARY
COLLECTIONS
Pamela Samuelson, Berkeley Law
Columbia Conference on Collective
Licensing
Jan. 28, 2011
Jan. 28, 2011
collective licensing conference
1
GBS: BOLD MOVE # 1
• Initial project aimed to bypass © obstructions to mass
digitization of in-© books through fair use
– Fair use to scan for purposes of indexing
– Fair use to scan for purpose of providing snippets
• With links to sources from which the books could be purchased or
borrowed
• No advertising unless RH agreed
• Willing to exclude works if RHs asked for this
– Implicitly also claiming fair use to make non-expressive uses,
such as analytics aimed at improving search and translation
tools
– Fair use to give Library Digital Copies (LDCs) to library partners
for preservation, privileged uses
– Over time, G might have been willing to make the full texts of
orphan books available, either as fair uses or on terms
authorized by Congress through orphan works legislation
Jan. 28, 2011
collective licensing conference
2
GBSS: BOLD MOVE # 2
• Proposed settlement would allow G to get a
license to do all of the above + much more for
only $45M to RHs
• Main new thing: license to commercialize OOP
books (unless RH says no)
– “Big money” likely to come from Institutional
Subscription Database (ISD) licensing
• New collecting society, Book Rights Registry
(BRR) to be established
• G to keep 37% of revenues, give BRR 63% to
distribute (less its costs) to RHs
• Is this settlement “fair” to the class?
Jan. 28, 2011
collective licensing conference
3
GBSS REGIME LIKE ECL
• BRR = CMO, mainly for OOP books
• CMO to welcome &/or recruit book RHs to register
• G gets a license to commercialize more than just the
registered books, license extended to all OOP RHs
• BRR to receive funds from G for all RHs
– Payouts to registered RHs
– Escrow funds owed to unregistered RHs
– Excess funds owed to unregistered RHs put to other uses after a
period of time
• Rationale: way to overcome prohibitively high
transaction costs, allow socially beneficial uses subject
to obligation to compensate RHs
Jan. 28, 2011
collective licensing conference
4
UNLIKE ECL IN SOME WAYS
• BRR has some obligation to look for
unregistered RHs
• Payouts to RHs only if register with BRR
• ECLs usually authorized through legislation,
subject to gov’t oversight
– Novelty to do this through a class action settlement
• Many GBSS provisions have 0 to do with ECL
• Many licensed uses (e.g., NDUs, NCRUs) are
uncompensated
• Only one licensee (G) will benefit from
comprehensive license available to it alone
Jan. 28, 2011
collective licensing conference
5
PROSPECTS FOR GBSS
• IMHO, GBSS should not be approved
– If Judge Chin approves it, likely to be
reversed on appeal
• So what can be done?
– GBS has shown benefits of mass digitization
– GBSS has offered a vision for enhanced
public access to corpus of digitized books
– How to achieve benefits of GBSS w/o
downsides? Legislation is one option
Jan. 28, 2011
collective licensing conference
6
WHAT I WOULD RECOMMEND
• Allow mass digitization of books with tiered
access by entities willing to commit to security
measures
– OK to digitize books for preservation purposes
– OK to display snippets for in-© books (unless RH
says no), with links to sources from which books can
be lawfully acquired
– Non-consumptive research privilege, at least for
nonprofit researchers
– Non-expressive uses privilege (e.g., to improve
search tools)
– Full text access for public domain and books known
to be “orphans”
Jan. 28, 2011
collective licensing conference
7
WHAT TO DO W/ NON-ORPHAN
IN-© WORKS?
• Create ECL for OOP in-© books
–
–
–
–
–
Give CMO power to license more than just Google
CMO to use funds to encourage RHs to register for payouts
CMO to offer open access options to RHs
RH opt-out option, escrow funds for unregistered RHs for 5 years
Dual objectives of fair compensation to RHs & promote public
access for nonprofit educational users
• Establish public registry for books, including © status,
who owns what in book, whether orphan, other metadata
• Over time (e.g., 5 years), if books are not registered with
CMO, they should be presumed orphans, & made
available on open access basis
• If RH later registers, can choose to restrict access
Jan. 28, 2011
collective licensing conference
8
OTHER DESIRABLE FEATURES
– Alternative to ECL: OK for libraries to “lend” DRM
version of OOP books physically owned by them
• Digital lending limited to # of copies of books actually owned
– Privilege to provide access for print-disabled
– Safe harbor for good faith determinations of PD,
orphan work status
– Redundant requirements
– Privacy protections for users
– Resolve e-book rights because contributes to OW
problem
– Other updates to library privileges
Jan. 28, 2011
collective licensing conference
9
PROSPECTS FOR LEGISLATION
• Difficult for Congress to act in general; public
choice problems with © well-known
• OW legislation far more plausible than my
proposed legislative package that would enable
the creation of a Digital Public Library (DPL), but
a leader with vision for the future could do it
• Legislation more likely if GBSS is disapproved
– Most constituencies support OW legislation (except
photographers)
– Main elements of GBSS still present in my proposal
(minus the anti-competitive parts)
Jan. 28, 2011
collective licensing conference
10
WHY NOT ECL FOR ORPHANS?
• Some scholars have suggested that ECL may be
desirable as a way to deal with orphan works issue
• May be a more politically acceptable solution to OW
problem in the EU
• US © tradition is more utilitarian, so that if no RH is
found after a reasonable search, work should be
available on open access basis
– AAP & AG argued vs. escrow $$ for orphans to CO
• CMO cannot realistically know what orphan RHs would
want, unlikely to license OW on open access basis
because no revenues from which to collect their
administrative fees
Jan. 28, 2011
collective licensing conference
11
TRANSPLANT ECL TO US?
• ECL has been successful in Nordic countries for
specific kinds of standard uses, but no such
license history in US
– US also has little experience with CMOs
– © industry dynamics in US may not be mismatch
– Will it work with newly emerging markets?
• Problems with CMOs:
–
–
–
–
Representativeness problems
Risk of discrimination vs. unregistered RHs
Anticompetitive histories
Need for government oversight to avert abuses
Jan. 28, 2011
collective licensing conference
12
PRIVATE ORDERING MOVES
• Work with professors, academic presses, universities,
other open access advocates
– Professors can insist going forward that their books be available
in an DPL, can request their publishers to agree to DPL for past
books, particularly OOP
– Professors can exercise reversion rights, TOTs to facilitate DPL
– Professors may well have e-book rights under the Random
House v. Rosetta decision to make available to DPL
• This would seem to require book-by-book opt-in
• What if major university presidents announced that their
university presses would allow CC-licenses for DPL for
all OOP books & encouraged faculty to do this?
– Might set good example for others to follow
– Send link to faculty to click here “I agree to CC license for the
following books for a DPL”
Jan. 28, 2011
collective licensing conference
13
INTERNATIONAL DIMENSIONS
• Approach discussed is US-centric, but it could
be a model for others
• Obviously a global solution would be best, given
the global nature of the Internet
– Complications: different national laws, territorial
nature of most licenses
• Worth working toward an international registry
system for works & their RHs as well as an
internationally acceptable solution (or set of
solutions) for orphan work accessibility
Jan. 28, 2011
collective licensing conference
14
CONCLUSION
• GBS has changed the © landscape for mass
digitization projects
• Obviously desirable to find a way to make
digitized books more widely available to the
public
• If GBSS is not approved, legislation will be an
option
• “At stake is…[the] exclusive custody of the
master switch” as Tim Wu says in his new book
– To whom should we trust control over the future of
access to the knowledge in books?
– A consortium of nonprofit libraries or Google or both?
Jan. 28, 2011
collective licensing conference
15