Orphan Works Rears Its Ugly Head Again

Uh oh, looks like orphan works is going to be one of those perennials until something is figured out. To Recap, there are books, movies, music and photography in the possession of archives and libraries where the author is unknown or cannot be found. These “orphan works” are copyrighted and cannot be reproduced or incorporated into new works (e.g. a documentary containing footage and photographs) without violating copyright law. Recently google tried to scan and make available out-of-print/orphan books after reaching a settlement with publishers so that authors (and publishers naturally) would be paid each time a book is viewed online. The agreement was opt-out (meaning you had to tell them to remove your book which meant orphaned books would be included) which caused Judge Denny Chin of the US District Court to reject the deal because it went too far in granting Google rights to exploit books without permission from copyright owners.

Now, the Author’s Guild is suing the University of Michigan and other college libraries for their plan to digitize and make freely available, books whose author cannot be found. According to PaidContent.org:

The universities want to make digital copies of the orphan works available to their students and scholars beginning in October. Librarians say they will make a careful search for the author before they make a book available and that they will “turn off” the digital copy immediately if an author comes forward. They believe that these steps will make the sharing “fair use,” meaning they would not be liable under copyright laws that call for fines of thousands of dollars every time a work is copied.

Authors’ groups are having none of it. Author’s Guild president Scott Turow called the scheme a “preposterous ad-hoc initiative,” and the lawsuit says the plan risks the “potentially catastrophic, widespread dissemination” of millions of books. The suit was filed in New York federal court in the name of writers groups from the U.S., Australia and Quebec, and individual authors like Faye Weldon. The suit asks the court for a series of dramatic remedies, including the permission to seize millions of digital works from the Universities of Michigan and California and to order the schools to cease cooperating with Google. The search giant is working to scan all of the world’s books, a project that some librarians once believed would take more than a thousand years.

Paul Aiken, executive director of the Author’s Guild, defended the proposed measures by saying writers’ were worried about the “security protocols for seven millions books” and that the schools had disregarded the law by embarking on a maverick project with Google. “There’s nothing in the copyright law about orphan works—this is their own hand-drawn definition.”

There are serious problems with simply “turning off” a digital copy in the internet age, because once released it can be copied forever. And, I agree that’s a ridiculous application of fair use. The biggest problem with orphan works in general is that everything we put up on the internet is potentially an orphan in the future unless you carefully register it in a central database. People like Seth Godin who argue that there’s nothing wrong with sharing dusty old books whose author and heirs cannot be found are missing the point that someone (google) will be making money off these books and the probability that in the future we will be swimming in an ocean of work that is completely untethered from the author will make our current situation look like a joke. Copyright is a balancing act that providing benefits to the authors of new works and then limited use of that work to benefit society and further creation of new works. Finding the balance in orphan works will be an important part of this.