Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.
The dust over Google’s 6-year long litigation with the Authors Guild has not even begun to settle, when already the next copyright infringement dispute between the two parties seems to be looming. For more information regarding the now-infamous Google Books Lawsuit, see the article by fellow IPilogue Editor, Matt Lonsdale, “Court Rejects Settlement Agreement in Google Books Class Action.”
The latest complaint, The Authors Guild Inc. et al. v. HathiTrust et al. was filed on September 12, 2011, by a combination of organizations and individuals, all of whom have the common interest of protecting authors’ copyright over their works. The document alleges, in no uncertain terms, that Google has been involved (with the help of HathiTrust and by partnering with certain educational institutions) in the “systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works,” and that this infringement quite clearly goes against sections 106, 107 and 108 of the US Copyright Act. The plaintiffs are the Authors Guild, The Australian Society of Authors Limited, and Union des Ecrivaines et des Ecrivains Quebecois (UNEQ), while the individual authors include Pat Cummings, André Roy and James Shapiro, among others. The defendants, on the other hand, are all organizations— HathiTrust (a digital library and preservation database), Google Inc. and the libraries of the Universities of Michigan, California, Wisconsin, Indiana, and Cornell University.
The major issues outlined in the complaint are centred around Google and the universities’ disregard for authorship rights of writers whose names are attached with their works, as well as for the purported “orphans” of global literature, i.e. “copyrighted works whose authors may be impossible to identify and locate,” as per the definition provided by the US Copyright Office. Google’s main partner in this (alleged) digital thievery, HathiTrust, provides the infrastructure for the storage and preservation of works once they have been copied into bytes. The works themselves are provided to Google through a “cooperative” agreement with the university libraries, and the actual physical process of digitization is conducted by Google, with its own software and tools. Because of the nature of these agreements, the plaintiffs state that every work is ultimately made into 12 separate copies, with the various defendants keeping these for their own use— whether for commercial or non-profit. The plaintiffs also mention that in no case do either Google or the other defendants seek permission for the reproduction of authors’ works, even when the materials in question are written by well-known and much-awarded authors.
As a defence, the defendants allege that the reproductions are for the public good, namely for the “tremendous societal value provided by [the] nation’s libraries and archives in preserving and securing works of art, literature and science.” The defendants are pointing to the “library exemption” provision under s. 107 of the US Copyright Act that allows for the selected reproduction of materials by libraries, in order to ensure greater public access. However, the plaintiffs then point to s.108, which specifically prevents almost all of the activity that the defendants have been carrying out, namely, the justified reproduction and preservation of documents, without any direct or indirect commercial advantage. While HathiTrust says that it is a medium for storage and access alone, the degrees of access are controlled by the HathiTrust Rights Database, which may very well charge a fee to the public or even release “full” versions of the works for free.
Additionally, the creation of the HathiTrust Orphan Works Project, a plan devised to weed out “authorless” works, has the plaintiffs up in arms. The Project has been formulated to find out if works without identified authors are available for commercial use, by determining the nature of their copyright. Interestingly, the “multistep due diligence process” is devised and carried out by HathiWorks itself, which tries to contact an author (if such a person is found) and, failing that, lists a work on its website to be claimed within 90 days of posting. After this time, the work is deemed freely accessible to the public in full and may be eligible for future commercial copyright by Google.
On reading the complaint, the reasons for the plaintiffs’ wrath becomes quite clear. As the document mentions, Google’s actions seem intent on dismissing the authors’ rights by involving educational institutions in what is fast-becoming one the biggest copyright infringement actions in history. Additionally, Google’s hasty scheme to digitize as much as possible, as fast as possible, leads one to think that the universities themselves have not placed much thought into the Project. The University of Michigan’s temporary suspension of the Orphan Works Project due to errors in the “pilot process” shows that the educational institution may have been carried away by the venture.
The Authors Guild website has enlisted the help of millions of readers worldwide to trace the authors of some of the works on HathiTrust’s “Orphan Row.” Considering this endeavour is only a couple of weeks old, the remarkable success rate shows the public’s desire to keep information open, but not at the cost of authors. The Google Books Lawsuit Settlement Conference on September 15, 2011 shows Google’s unwillingness to compromise, but it seems that the universities involved are attempting to work out a legal solution to the issue.
Barry Sookman and Dan Glover also talk about the concept of digital space, where fair dealing and lending without reproduction exist, but within reasonable limits. This is a special responsibility for universities, which provide access to information to millions of readers worldwide. Educational institutions are already both the sources and the propagators of original thought and creativity, as well as media for dissemination of knowledge to the public. Academics themselves might be subject to unauthorized reproduction if the HathiTrust projects are allowed to go on. The mass release of scholarship to the general public through private parties could affect the quality of education offered in institutions of higher learning, with the universities ultimately having no one but themselves to blame for going googly-eyed over Google’s ceaseless culture grab.
One Response
Mekhala, thanks for your meticulous summary of the HathiTrust dispute. I would appreciate a more detailed explanation of why you think the “mass release of scholarship” could affect the “quality of education” offered by the universities participating in this project.
Although it is important that mass digitization projects ensure they desist from infringing copyright, I am not sure the universities here had eagerly affixed themselves to the Google initiative without “much thought,” particularly as the U.S. currently has no formal regime to access and use orphan works. (The key applicable provision is s. 108(h) of the U.S. Copyright Act, which allows libraries and archives to make certain uses of copyrighted works during the last 20 years of their protection.) In fact, libraries and archives are probably the most appropriate institutions to oversee the digitization of works because of their public interest mandates. HathiTrust’s present orphan works identification project, in which the organization conducts its own diligent search for the copyright owner, is congruent, rather than anomalous, to other jurisdictions—although the absence of a third party figure of accountability is problematic. In Canada, the Copyright Board assesses the “reasonable efforts” an applicant has made to locate an owner (Copyright Act, s. 77), and the European Union (EU) has proposed that individual Member States do the same (“Proposal for a Directive of the European Parliament and of the Council On Certain Permitted Uses of Orphan Works,” 2011/0136 (COD), Art. 3).
The most efficient way to resolve this issue would be to leave it in the hands of the parties involved to negotiate some blanket license on behalf of orphan work copyright owners. This evokes the EU’s recent “Memorandum of Understanding: Key Principles on the Digitisation and Making Available of Out-of-Commerce Works” (the “MoU”). Although the MoU was intended to handle out-of-commerce works (works that are still protected by copyright but are no longer commercially available), it also presumes that collective societies represent non-member rights holders in license negotiations with public interest institutions. However, the track records of both the Google books and Freelance (In re Literary Works In Electronic Databases Copyright Litigation, 05-5943-cv(L)) settlements indicate that American courts tend to disagree that orphan work copyright owners can be adequately represented by these other parties. The Google books settlement was rejected by a New York district court judge this past March, and the Freelance settlement was similarly overturned by the Second Circuit in August. Both courts noted that the plaintiffs named in the settlements could not adequately represent the interests of all the class members.
Rather, these judicial decisions signal a leaning towards the regimes of jurisdictions such as Canada and the EU, in which a state-mandated body is responsible for identifying orphan works, reviewing requests for their use, and assigning royalties. As such, the solution that both enhances access to copyrighted works and ensures that authors are fairly compensated is perhaps not the courts but the final realization of the proposed U.S. Orphan Works Act, which has been introduced twice and stalled in Congress for nearly five years.
Comments are closed.