Transcript Copyright_ _the_DL_DTC_FINAL.ppt

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
– 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?
1. Feasibility study – random sample (1999–2001)
– Is it possible? What are the problems?
2. Posner project – fine & rare books (2002–2003)
– Change method to increase success & lower cost
3. Million books project (2003–2004)
– Change strategy to acquire permission
for more books per transaction dollar
Results Per Publisher
100%
3
11
27
Other
43
75%
Still negotiating
39
23
Permission granted 50%
28
Permission denied
18
5
23
31
27
Posner
MBP
25%
No response
Not located
21
0%
Feasibility
Total
209 publishers 104 publishers 364 publishers
277 titles
284 titles
cited in BCL
Closed Negotiations
100%
Other
Permission granted
75%
Permission denied 50%
No response
25%
Cost per title
18
35
65
$100
28
Feasibility Posner
Cost per title
38
44
7
0%
Permission
$150
30
35
57 publishers
66 titles
$200
$200
45 publishers
178 titles
$78
$50
$0
MBP
84 publishers
53,000 titles
$0.69
FEASIBILITY
Commercial Most
Least
Most
Commercial Least
Least
Scholarly
Most
University
Most
Least – same %
Most
Most
Least
Scholarly
Slightly >
commercial
Special
MBP
Most
Commercial
Scholarly
Most
Same % as
feasibility
as feasibility
Least
Most
University
Special
Least
Slightly >
commercial
University
Special
Lower response
& success rates
overall
Response Permission
POSNER
Results
Per
Publisher
Type
Content
Most
Least
Least
Most
Million Book © Permissions
100%
Out of print
titles
21
Designated
titles
75%
Titles prior
to N
50%
Titles N+
years ago
10
42
51
85
100
58
25%
19
0%
9
5
Scholarly
University
Commercial
Other
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?
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
100%
Experience
No
Yes
NIMBY
100%
75%
75%
Detailed solution advice
Simple solution advice
Public domain
19%
with analysis
50%
50%
25%
25%
0%
0%
Initial
comments
Reply
comments
Initial
comments
38%
with analysis
Reply
comments
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
Books published in English in the United States (WorldCat)
Books for which copyright owner cannot be found
Books for which copyright owner does not respond
Books out-of-print
6,000,000
5,000,000
4,000,000
Estimates based on results
of feasibility study
3,000,000
2,000,000
1,000,000
0
1923- 1930- 1940- 1950- 1960- 1970- 1980- 19901929 1939 1949 1959 1969 1979 1989 1999
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
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
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
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?
The Solution
• Must be fair – recognize …
– 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
Compelling Metaphors
Upside down pyramid
on a funnel
Copyrighted works
Orphan works used
Copyright owners surface
If many chickens come home to roost,
the solution was poorly designed.
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
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?
In copyright
18%
Out of copyright
82%
1923 lower boundary
© status
of unique works
in participating libraries
34%
66%
1963 upper boundary
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?
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