GBS: University of California Library FAQ

The University of California Libraries have aposted a FAQ on their ongoing negotiations with Google about becoming a Fully Participating Library. It’s not recent, but I’m just getting around to reading it now. On the whole, it’s highly readable and a very helpful summary of the settlement’s provisions from an academic’s perspective. I liked, to pick just one example, this succinct description of where libraries stand under copyright law:

Libraries own these books in their collections – shouldn’t the libraries be able to make the digital versions available to users everywhere, for free, just as the books themselves are?

Although libraries own the physical copies of these books, many of the works themselves are still protected by copyright. A copyright holder has exclusive rights under the federal Copyright Act, including the rights to reproduce the work or prepare derivative works based on the original. The exclusive rights are tempered by certain statutory exceptions, such as fair use, interlibrary loan, reproduction for use by persons with disabilities, etc., but none would allow the libraries to make whole print or digital copies for users for their free use.

This clear and direct document becomes interestingly evasive in places, though:

Will libraries discard books that have been digitized?

  • One of the benefits to libraries is the opportunity to make collection management decisions, especially in light of dimming prospects for increasing physical space, whether on campus or in shared library facilities.

That’s not an answer to the question, and the phrase “opportunity to make collection management decisions” is a little frightening.

  • Libraries are studying the best approaches for taking advantage of digital copies, but it is extremely unlikely that all physical copies will be discarded. It is more likely that the digital copies will work synergistically with their physical counterparts, enhancing and extending access to the originals. For example, by making the digital copies accessible through the Institutional Subscription or on a more limited preview basis through Google Book Search or HathiTrust, the millions of volumes already in storage at one of the two UC regional library facilities or located at another UC campus will be able to be consulted online before deciding whether to request a copy for physical delivery, saving users’ time and reducing wear and tear on the physical volumes themselves.

Got that? It’s “unlikely that all physical copies will be discarded.” But discarding all of the copies is a low threshold. The point that consulting electronic copies will often be an effective substitute for bringing in an offsite physical volume is important and legitimate—but “physical delivery” and “discard” are answers to different questions.

  • Just as there were experiments and investigations about usage patterns when digital journals became available, there will likely be similar studies to understand how best to meet faculty needs for books, both print and digital.

That’s not an answer, either. If the experience with digital journals is any indication, this sentence suggests that UCL expects the Google Book service to be exorbitantly expensive and to display a great many physical book purchases.

Other sections embrace controversial positions with respect to the settlement. Thus:

What about the view that Google will have a monopoly?

The main concern appears to be that Google has a monopoly on the provision of orphan works since others will not have the same protections, absent legislative action. However, Google took a significant business risk in digitizing works regardless of copyright status. Most organizations involved with mass digitization, other than Google, have chosen to avoid digitizing works that are still in copyright. Nothing in the Settlement precludes another organization from scanning works and establishing a comparable service.

This is the same excessively simplistic view of the orphan works issue under the settlement that I have been trying to debunk for the past nine months. The settlement doesn’t block others from competing to sell orphan works … but copyright law does. Google scanned books for different purposes and then coincidentally leveraged it into a settlement letting it sell the books. That road, as I’ve explained at length is not guaranteed to be open to others. They wouldn’t just face “business risk”; it’s illegal for anyone else to do what Google proposes to do under the settlement.

My question for the University of California Libraries is this: If you believe that the post-settlement world is really open to competitors, will you commit to working with them on scanning books, too?

Later on, when speaking of orphan work revenues, the UCL FAQ states:

Another complaint is that the unknown rightsholders will not receive financial benefits; rather, the Registry, the known rightsholders, and selected nonprofit institutions will receive the income if a rightsholder remains unknown (either by name or by address). UC would prefer that all royalties from orphan works go to nonprofit organizations, but we were not a party to the lawsuit. While arguments can be made about the relative fairness of the revenue-sharing scheme, the fact that orphan works will be accessible and usable is beneficial.

I’ve seen this from a bunch of libraries; they want to orphan works revenues go to nonprofits. Sometimes (though usually only in private), they say, “to libraries.” I agree with them that diverting orphan works revenues to the Registry and other rightsholders is problematic, particularly on conflict-of-interest grounds. But the fact of the matter is that if a work is truly and irrevocably orphaned, no one has a good moral claim to the money. Those works ought to be in the public domain.

Once you take the position that the rightsholder is unfindable, the only place the money should reasonably go is back to the reader who paid for it in the first place. The pool of unclaimed orphan works funds are phantom revenue; we should recognize that it came from readers, not from some magical money spigot in the sky. Refunding it back to them doesn’t just fix the corrective justice problem of their overpayment; it also reduces the deadweight losses of charging for access at all. I’m agnostic on how long Google and the Registry should hold unclaimed funds, but not on what should happen to the money once the orphan copyright owner is officially declared lost at sea.

Finally, let me note that if you are interested in questions of equity and access between libraries, you will want to read the item, “What if the price of the institutional subscription becomes unaffordable?” very carefully.

The disposition of revenue from orphan works is frequently misrepresented. Two revenue streams are handled differently. The rightsholder’s share of revenue from sales of orphan copies are held in escrow, and if unclaimed, are donated to charity. Unclaimed revenue from institutional subscription sales on the other hand, is divided among rightsholders whose works are included in the institutional subscription.

Would it be even be practical to offer refunds to purchasers? It seems likely that the cost of paying the refund after holding the funds for the escrow period could be comparable to the amount of the refund.