Samuelson on Legislative Alternatives to the Google Books Settlement

Berkeley’s Pam Samuelson continues to demonstrate why she is the most significant copyright scholar thinking about the Google Books settlement. Her two previous extended articles, Google Book Search and the Future of Books in Cyberspace and The Google Book Settlement as Copyright Reform were both must-reads that put the settlement in the larger context of modern digital copyright law. She has just rounded out the trilogy with a draft of Legislative Alternatives to the Google Book Settlement (SSRN version, which plots out a possible way forward.

People have bandied about the idea that the settlement tried to create a form of extended collective licensing via the unusual route of a class-action settlement. Samuelson gives this idea a rigorous examination, noting some of its advantages and its pitfalls. In an especially illuminating passage, she compares the settlement programs and the kind of collective licensing in place in the Nordic countries to some of the closest comparable things in the the United States: the Copyright Clearance Center and JSTOR. She doesn’t fully extended collective licensing (indeed, she notes a number of significant concerns about its implementation), but instead recommends that the Copyright Office be asked to study the possibility.

Samuelson then proceeds to tick off a list of elements that she thinks belong in a balanced legislative package dealing with the issue Google Books raises:

  • An expansion of the section 108 privileges for preservation, subject to appropriate safeguards such as security procedures. Digitization is an obvious and important component of preservation strategies; a well-crafted preservation privilege could help institutions like the HathiTrust use Google-scanned books to pass on our literary heritage. In a later section, Samuelson also argues for an expansion of library privileges in general. The Section 108 Study Group previously took a cut at this problem, but none of its (fairly modest) proposals have yet been acted on.
  • A privilege to display snippets (subject to an opt-out) and to make what the settlement called “nonconsumptive uses” but Samuelson more accurately renames “nonexpressive uses.” (I would argue that both of these are or should be fair use already, but explicit recognition would provide a firmer legal footing.)
  • “Congress should consider requiring Google to grant a license to other search engines to make nonexpressive uses of works in the GBS corpus.” Here, I wonder. I disagreed with the portions of Judge Chin’s opinion that could be read to suggest that Google’s initial behavior was necessarily reprehensible; Google engaged in activities that it reasonably thought were legal under copyright law. (I and others thought so, too.) Google’s competitors were not as tolerant of legal risks. This strikes me as a classic example of Learned Hand’s famous line from United States v. Alcoa, “The successful competitor, having been urged to compete, must not be turned upon when he wins.” In this case, if others would like to search the collected corpus of books, it seems reasonable to ask them to make their own scans. The real fix here is to reform copyright law so that scanning for purposes of indexing is unambiguously legal — which is captured in Samuelson’s point about snippet display.
  • Her proposal for what to do about orphan works is a clever compromise between the settlement and a full open-access regime:

Yet, Congress might consider adapting the GBS approach to orphan works to achieve a similar but better outcome. Congress could authorize the creation of an ECL for out-of-print books, as noted above; unclaimed funds from these books could be escrowed for a period of years; and after efforts to locate owners during those years failed, the works should be designated orphans and made available on an open access basis. If a book rights holder later came forward, he or she should be able to change the open access designation for such works.

  • The mess over who owns electronic rights under decades of accumulated author-publisher contracts, in Samuelson’s view, is severe enough that it may justify Congressional action, perhaps along the lines of the settlement.
  • The settlement’s programs for print-disabled readers were groundbreaking; similar provisions in copyright law in general would be a real breakthrough in meaningful access for a group that could most benefit from it.
  • Privacy protections for readers are serious enough that they should be legislated.
  • Finally, good-faith determinations that a work is in the public domain or was not commercially available should act as a shield from liability, provided that the entity stops treating it as such once the mistake is pointed out to it.

All in all, this is a very important paper. It deserves to be read alongside the discussions of a possible Digital Public Library of America; it gives serious attention the legal details on which any such project would depend. One may not agree with everything in it, but if you are interested in copyright policy post-rejection, it would be a serious mistake not to read this article closely.

The government of Norway has quite recently adopted an ECL [extended collective licensing] regime to enable mass digitization of books in the collection of its national library.(Pages 13-14)

The social benefit of ensuring the preservation of cultural heritage is very strong, and the risk of economic harms from preservation copies is very small, particularly since rights holders typically have little interest in or incentive to engage in preservation activities, which are often expensive and difficult. (Page 26)

Norway, like Canada, has legal deposit in which content creators are required to submit their work to their national libraries. If the “social benefit of ensuring the preservation of cultural heritage is [so] very strong”, how come the US does not require it of its citizens? Why the interest now? Is it because of the new found commercial value of printed works? Pam Samuelson, in her lecture states that 50% of the Google corpus was published outside of the United States [1:07:43]. I was happy to submit my work to Library and Archives Canada for preservation but I am not happy that foreign interests have appropriated it.

Regarding required “legal deposit”: “If the ‘social benefit … is [so] very strong’, how come the US does not require it of its citizens?”

The U.S. has always had a deposit requirement for works that comply with the registration formality. The 1790 Act required 1 copy to be deposited with the secretary of State; beginning in 1831 the requirement was 2 copies to the Library of Congress (or, after 1909, to the Copyright Office).

My apologies. I was wrong in saying the United States did not have legal deposit.

I wrote the National Library of Norway and asked:

Your web site says all the books in your collection are to be digitized, does this include foreign works (works that were not subject to legal deposit) that are still under copyright?

Their reply:

We are concentrating on the Norwegian material, it will take some years so we haven’t got any plans further today.

I believe this is the Norwegian contract referenced by Ms. Samuelson. In the contract Kopinor claims to represent “memebers of … foreign rightsholders’ organisations”. I wonder if they check to see if the work is that of a member of the organizations they claim to represent. (i.e. Kopinor has an agreement with Access Copyright Canada. I am not registered with Access Copyright. If the Norwegian Library had a copy of my book would they still digitize and make use of it?)

Whether Ms Samuelson’s proposal for a variation on the ‘mandated public lending right’ passes all of the three test steps of the Stockholm convention required for the justification of state mandated restrictions of exclusive individual rights , is a better question to spend time on than the GBS ever was.

Feel it possibly dos not pass the test; it is not clear that the main (let alone sole) use of the books would be for public education/benefit. Secondly- because the definition of orphan is so leaky- it would provably adversely affect the economic rights of some classes of authors vs other classes of authors ; It would transfer benefits from some authors to other classes of authors (mostly academics) who stand to gain significant professional/economic benefits from free and easy distribution ,a private professional benefit not a public benefit.

It also, of course, continues the idea of creating a complex and costly transaction system to deal with making payments to people who are mostly uncontactable; all so as to avoid dealing with the problem of too much copyright extending for far too long.

The Stockholm convention favors restrictions (of exclusive rights) that have a discrete special public benefit purpose like: public education, freedom of information, public discussions and the like. It thus favors minimalist solutions that do not have wide collateral impacts on right holders rights, outside of that special social purpose.

A shifting of some of the ‘consent’ onus from the user to the un-contactable right holder and a limitation of rights to damages, in the case of books that are 30 or more years old and are in public libraries is pretty minimalist.

With more recent books it should stay as it is - no active consent, no touching, until 30 years is up. Over time the ‘problem’ would provably largely sort it self out without too much drama.

The idea of introducing a sort of mandated Torrens title registry as a replacement for the chaotic old systems tile that applies in copyright is a very big project. And without the involvement of what will very soon be the world biggest economy - china - it has Bucklys chance ; Perhaps it could be delayed until after we manage to sort out the fossil carbon problem?

James — A question about snippets , is there much concrete evidence that people are really using them to reassemble whole books? Wouldn’t you have to already know enough about the contents of the book (so as to ask enough right key word questions) to suggest that you possibly have already read the book you are laboriously stealing?