One my students, Joe Merante (also a Creative Commons intern rockstar just called to my attention a very interesting article in the online law journal SCRIPTed:
Sally McCausland, Googling the Archives: Ideas from the Google Books Settlement on Solving Orphan Works Issues in Digital Access Projects, 6 SCRIPTed 377 (2009) (also available in PDF).
Many large scale digital archive access projects, whether undertaken by libraries, cultural institutions, commercial enterprises, research institutions or interest groups, struggle with orphan works and other copyright clearance issues. Under the default “opt-in” system prevailing under the Berne copyright treaty framework, each copyright owner must be located and give permission before their material can be digitised and made available for online uses. This imposes significant transaction costs and legal risks, and the public interest in access to cultural material is compromised. Various legislative solutions have been proposed, particularly in relation to orphan works, but no comprehensive solution has emerged.
Legal developments around Google’s activities in pursuit of its “Library Project” now offer new ideas. The Google Books Settlement is the provisional settlement of copyright infringement action brought against Google by the American Authors Guild and the Association of American Publishers. The case concerned the legality of the Library Project through which Google has digitised millions of “archival”, or out of print, books and made them searchable online. Google’s controversial defence to copyright infringement is that its actions constitute fair use under US copyright law. The settlement is not yet judicially approved and fairness hearings are set for October 2009. However, if approved, it will be groundbreaking. It achieves, via class action rules, a rule switch from opt-in to opt-out – creating a unique safe harbour for Google to commercially exploit millions of books without first searching for owners and seeking their individual permissions. In practical terms, it will vastly increase digital access to in-copyright, out of print books.
This paper considers whether legislative reform based roughly on this model could be applied to other digital access projects seeking to unlock cultural archival material.
McCausland provides a highly readable, fair-minded take on the intersection of the settlement, orphan works reform, and the Berne Convention. I wish I’d come across it before writing When the Unprecedented Becomes Precedent, as she anticipates some of the ideas I was playing with.