Online access to once-lost information is an exciting prospect.
The biggest book deal ever is about to come under attack. Google reached a $125 million legal settlement last year with book publishers and authors so that it could digitize some 18 million books. A federal judge will soon review its terms, with the Justice Department likely urging adjustments to avoid antitrust issues. Authors are complaining about their paltry share from the settlement. Librarians warn about the implications of one company having the only clear rights to old, out-of-print books.
Still, people will cheer Google for its audacious goal: to restore access to the 60% of books—some 10 million—that are under copyright but out of print and unavailable in any medium.
The prospect of easy online access to once-lost information is an exciting example of how technology can restore knowledge, but this is only part of the story. The less happy part is that it took a complex legal settlement among Google, publishers and authors to establish property rights that are clear and enforceable enough to give Google the confidence it needs to make inaccessible books accessible.
The problem is “orphan works,” a phrase that refers to books still under copyright but no longer supported by publishing efforts. These books are in a netherworld where the rights holders cannot easily be found by anyone who wants to distribute the books, because no ownership records are kept. This empty property right is the ultimate fate of most books published in the U.S., even now that digital copies are so easy to maintain, search and share. The Google settlement thus brings back millions of books that had been lost.
Why should there be such a thing as an orphan book? This question vexes copyright expert Lawrence Lessig, a Harvard law professor who has been trying to devise an alternative. In an interview last week, he argued that the Google settlement should spur Congress to “remedy the core inefficiency that has turned this extraordinary effort to expand access to knowledge into a federal case.”
Copyright is supposed to be a property right “intended to make markets function more efficiently,” Mr. Lessig says, enforced so that we “minimize the need for lawyers and judges and maximize the return to the property owner.” Instead, “our Congress has produced an abysmally poor system for identifying who owns what.”
Mr. Lessig proposes that we learn from the precedent of the Google settlement to fix a system that doesn’t work for either authors or readers. He suggests returning to earlier laws that required copyright holders to reconfirm their interest periodically by registering ownership, for a modest fee or no fee.
If no one claims the right, the book would pass into the public domain and be available to Google or its competitors. “The consequence very quickly would be a registry with a clear list of property rights owners,” he says.
There are complications, including the Berne Convention of a century ago that eliminated registration processes in domestic markets in order to protect the holders of foreign rights. But in a digital era, it should be possible to create a global registry, used by all. The result would be clear rules, with copyright owners protected until they are happy to have their work pass into the public domain.
This is part of a broader theme: Digital technology means that people need new options for how they use copyright. Mr. Lessig is one of the founders of the Creative Commons movement, which allows software developers, bloggers and others to agree not to protect what would otherwise be their copyright, in exchange for being able to make use of the work of other likeminded people. They get more value by contracting around copyright law—that is, by agreeing to accept fewer protections than copyright law would allow.
This approach doesn’t work for commercial enterprises such as book publishers, but it could work for authors once they get their rights back from publishers. In a digital era when sharing intellectual content can create the most value, people will sometimes want the right not to enforce their rights.
Copyright used to be an esoteric topic, managed by lawyers for sophisticated enterprises like movie studios and recorded music companies. Today, copyright plays a much broader role. Everyone who copies content digitally is potentially subject to the intricacies of copyright laws, “whether you’re MGM or a kid doing a school assignment,” as Mr. Lessig puts it. We need clearer rules now that anyone at a computer can copy a work owned by someone else.
It’s hard to imagine two cultures more different than the what-technology-makes-possible culture of Google versus the this-is-what-the-law-says culture of Washington. Still, there is a clear common interest in restoring effective property rights to benefit authors, publishers and readers.
Gordon Crovitz, Wall Street Journal
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