Regular commenter Gillian Spraggs attended a meeting with representatives of the UK Intellectual Property Office last month, and discussed the Google Books settlement and related issues with them. Here is her summary of the meeting:

• From the point of view of IPO and the government, the GBS model of digital publishing is one that is ‘in principle worth looking at’.
• ‘Improving access to digital content’ is perceived as immensely important, and there is held to be a ‘logjam’ in delivering this, which the mechanism of the GBS dislodges. (I challenged the existence of such a logjam in the meeting.)
• There is a perception that licensing works for use is currently ‘too complicated’.
• On the whole idea of the GBS and the way it is set up to operate: when they looked into it they found ‘nothing so offensive about it that we would unhesitatingly condemn it’.

We were told that our group was far more hostile towards and critical of the GBS than anyone else they had talked to.

She continues, after a discussion of the various UK authors and publishers groups and their positions on these issues, by summarizing some of the proposals of the Digital Economy Bill:

Provisions included in the Digital Economy Bill (Clause 42) would pave the way for this. They provide for the government to bring in regulations under a statutory instrument that would authorize ‘a licensing body’ – such as the ALCS – ‘to grant copyright licences … in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts’. In other words, this would be a default opt-in arrangement, just like the Google Book Settlement. It would be possible to opt out only ‘in respect of rights excluded by notice given by the copyright owner in accordance with the regulations’ (whatever those may be). The reference to ‘rights’ implies that, just as with the Google Book Settlement, an author who wished to stay in control of his or her copyrights would have to give details of every single publication he or she had ever licensed. (The same would apply, if course, to literary estates.)

These provisions would permit the Secretary of State for Business, Innovation and Skills (or a successor) to authorize the ALCS (or a similar company) to mass-license all British publications to Google (or another entity), except in those cases where the authors or other copyright-owners had gone to some trouble to prevent this.

The UK government (and the US Government) also need to be made aware that a book being available in libraries and used bookstores does not constitute a “logjam.” It can be read for enjoyment, edification, and research. It can be reprinted with proper permission obtained from the copyright holder and usually, also paying that copyright holder. Reprint publishers such as Dover do this all the time.

The book just can’t be reprinted without permission. Hardly a “logjam.”

Nothing in UK or US copyright law, as far as I know, forces the publisher or author to keep the work in print continuously—however bad the financial deal he/she has to scramble for instantly just to retain control of his/her rights so that they are not seized by third parties. And however desirable it might be to instead publish an updated edition that will take time to research and rewrite, instead of constantly focusing on retaining rights to the old edition. Because, of course, free distribution of the old edition will destroy the paying market for a similar but better new edition.

Yet, numerous parties are trying to make this the new norm—“Keep it in print constantly or everyone else gets to seize it for their own gain.”

This is an international issue. Rights to material in anthologies are often licensed from several countries that speak the same language, and there are also translations of material from different languages. An anthology of stories or essays published in the UK may well contain material witten by authors in the US, Australia, Canada, New Zealand, etc. Are we all going to have to register all our books and “inserts” in every other country?

I have a suggestion for Gillian and others who wish to oppose such “orphan works” acts. Which is, to approach societies of photographers and illustrators for support. Many books are illustrated, and the rights to illustrations are very commonly held by parties other than the author or publisher. For some books, such as art books and coffee-table books, rights are often licensed for one-time use from numerous sources.

Even if the author and publisher can be declared unlocatable—though all such movements, from the previously proposed US “orphan works” acts to the Google grab, have required very little effort at locating copyright holders—that does not mean the photographer or illustrator is also unlocatable. Furthermore, photographs and commercial illustrations are often not signed or attributed, and fine art illustrations often have illegible signatures.

Therefore, any such “orphan works” movement that covers loose illustrations (by which I mean, not in a book or periodical with a title and publication data), is inevitably going to violate international copyright law: The artist holding the copyright could be a citizen of any country. Futhermore, registering numerous lifetime publications of “inserts” is very burdensome to prolific writers, but photographers and illustrators have it far worse. They not only have to deal with many more images, the images often are untitled and can only be described in ways that apply to numerous other images created by other people.

Again, this is an international issue—and now I’m wondering if the Canadian and Australian governments are not opposing the Google Settlement because they are contemplating similar so-called “orphan works” acts.