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back to article US states mulling Google book-scan pact

A group of US state attorneys general recently held a conference call to discuss Google's $125m digital book settlement with the US Authors Guild and the Association of American Publishers. The settlement - made after authors and publishers sued over Google's library-scanning Book Search project - is already facing an …

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Orphan works

"The settlement creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a pre-defined cut of Google's revenues and it gives Google rights to so-called "orphan works," books whose rights are controlled by authors and publishers who haven't stepped forward."

I find myself literally speechless, uttering incoherent sounds until sputtering out a mere "huh?". How can these two organizations give Google the rights to books for which they do not control the rights? That would be like me saying I'll give you rights to the Microsoft Windows code or the Linux kernel. I can't do that because I don't control those rights. How and why should this be any different? I've got a lot of music files and demos back from the BBS days for which I have no contact information (thus I have no way to contact the authors or publishers); does that mean I can do whatever I want with them?

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if google gets a "deal"

Then the same deal should be available to anyone / everyone. It's nice that they want to do this, but this isn't a "gift" on their part...they fully expect to monetize this. Everyone should be able to get the same "deal" and when an owner comes forward should be able to fully re-claim all their IP rights instead of losing them to Google.

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@chris...

You are right. You can't give away rights to works you don't own the rights nor represent the rights of the authors.

But here's the rub. Google says they have the rights. You scan and make a copy of an orphan work and put it on the web. Google then sues you claiming that they have the rights to the 'orphaned work'.

Google may not have the rights, but it will cost you a lot of money defending yourself and it doesn't stop google from making money from the 'orphaned works'.

If anything the US LoC should takeover and make orphaned and public works available for free.

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Stop the Pilferage

Orphan books belong to the American people (or, for that matter, to the people of the entire world), not to Google. Apparently, on the account of scanning over 7 million books, a substantial number of which are orphan books, Google executives think that orphan books belong to them: in reality, what belongs to them are just hundreds of millions of illegally scanned pages, not their copyrights.

Orphan books are essentially abandoned properties, and as such they must belong in the public domain, not in Google’s coffers. The issue of identifying orphan books, which Google suggests is an impossible task to do without the Google Book Settlement, can easily be done by establishing a copyright registry not sponsored by a for-profit company, but by a government agency, such as the US Copyright Office. (A similar registry, called Book Rights Registry, is to be established in the settlement, but it is for the sole benefit of Google.)

With the help of the Internet, the registration process can be completed within a couple years after its inception, and whatever the books that were not registered by their authors or the rightful copyright holders during the registration period should be classified as orphan books, which then should be made available for download in a digital format only for non-commercial distribution (the current copyright time limit should remain in effect for for-profit distribution).

At the minimum, we must demand that orphan books be categorically removed from Google Books Settlement so that the settlement only deals with books with clearly identified copyright owners.

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Where the problem lies...

"Then the same deal should be available to anyone / everyone. ..."

I think that, in theory, it is.

The problem seems to be that, now that Google has scaned everything, and ammortised the cost, it can provide access to all the world's books essentially for free. Noone can compete against that.

So we now have (near enough) a monopoly supplier of all the world's information. Google has done what Microsoft did in the 1980s, and established itself as the only practical provider of a world-wide requirement. Even another free provider would struggle to compete, just like Linux.

Google may say it will do no evil, but how do you define evil....?

Why do we have four different 'I hate it' icons, and nothing for 'I worry for the future' or 'WTF?'

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@Dodgy Geezer

"Google may say it will do no evil, but how do you define evil....?"

Well, you can probably find a dictionary somewhere among all the Google Books, one that defines "evil" in a way that makes all this make sense. :-)

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I think

More than anything else, this shows the stupidity of the current copyright legislation in granting such long periods for works. If everything had a protected period of (say) 10-20 years after publication, then this issue would not arise, Instead we have these ridiculous periods of about 70 years after the death of the author. I could invent a machine or drug that saves millions of lives and would not expect the same ridiculous period.

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Revolution , anyone?

70 years plus the life of the author is too long for copyright and 20 years is too short for patent, but anything longer than 20 years for a successful patent probably would create a monopoly that would not be in the public interest. This is why drugs are protected under patent, not under copyright. As for authors, most of whom are unemployable in anything but in their own art, it is reasonable to extend the copyright to at least the life of the author, and perhaps another 20 years for their surviving spouses.

Of course, in today's multi-tasked environment for works of art (movies, software etc.), business corporations get in the act, and they have been the primary mover in extending the copyright duration to the present sorry state. This is where the ridiculous extra 70 years of the extension comes in.

A draconian but simpler solution is to make the copyright protection for a single author to be 20 years plus the life of the author, and for corporate or joint copyright ownership, straight 70 years after the work’s first publication date --with no addendum, no exception. Furthermore, software copyright should last for only 10 years for all publicly released software (software vendors can keep their copyright “alive” by continually coming out with a newer version of the original software--which they do anyway). Customized software designed only for internal organizational use should be given a longer coverage since it is not released to the public.

Most importantly, copyright protection should not be given automatically beyond the first year. If the author wishes to extend the protection beyond the first year, he/she must register the work with the US Copyright Office (in the case of the US) with a small annual fee (say, $10 for a book, $1.00 for an article).

If the author fails to renew the copyright for his/her works, they should be classified as abandoned intellectual properties available for non-profit digital distribution. (But the for-profit distribution right in all formats should still remain for the regular duration of the copyright).

This system will allow orphan books to be in the hand of the general public much quicker than the current copyright scheme regardless of the author's state of existence (or nonexistence). So it would be up to the author to decide whether his/her work is worth extending its copyright protection, or let the public do whatever with it (but not make money at it). If the author and the spouse are dead, then the expiration of the copyright registration makes that decision. It's rather simple, and it will benefit the public far better than the current system in place.

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@George Snyder

You're proposing a system to create a series of copyright registration offices (one for every country? will that be $1950 a year to re-register everywhere?) administrating everything published, on a yearly basis, and which will need to somehow arbitrate between for profit and non-profit uses (the sort of thing which even the fine legal minds behind CC are stuck on) and which will only be used for one sort of format and you think that's simple? It might be better - certainly I'm fine with death+20 and 70 for Big Corporations - but I'd say it's actually more complex.

More importantly, do you think it's fair that an author miss out on control of digital versions (control which your system recognises as valuable) if, after five years and three sales, they don't renew their copyright only for their book to become insanely popular - made into a film in year ten of its existence, say? One of the reasons for copyright on books lasting a long time is the recognition that it's difficult to accurately predict value over time for books. Sure, it might be that it becomes popular and is filmed *because* it's freely available, but in that case people should be doing that anyway, and encouraged to do that, not just if they can't pony up a sawbuck every year.

It's probably moot anyway, because free digital versions of books are going to be widely available without registration unrenewed, legally as part of marketing campaigns, or illegally as part of the the continuing confusion between civil rights and entertainment.

And the Reg needs a 'Squirrel Boy is evil' icon.

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Nuts

Most importantly, copyright protection should not be given automatically beyond the first year. If the author wishes to extend the protection beyond the first year, he/she must register the work with the US Copyright Office (in the case of the US) with a small annual fee (say, $10 for a book, $1.00 for an article).

So you must pay a writing fee tax or whatever for free speech in the USA?

What a place!

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The Devil is in the details

Copyright registration systems already exist (at least in the US, with the US Copyright Office, and in the UK, with UK Copyright Service). In fact, if you are an author intending to publish your work for profit in one of these countries, you would be a fool not to register your book with the respective Copyright Office. The reason is simple: without the copyright registration, it is virtually impossible for you to pursue various legal claims in case your copyright has been infringed.

So if your book attract a significant attention outside of your own country, and a foreign publisher wants to publish your book, yes, you’d better register in that country if that country has a registration system to protect you better in case you have to fight legal claims in that country. But then, if you are that famous, you wouldn’t be fuming about $1950 a year or whatever, since your foreign publishers would probably take care of that anyway.

So, for professional authors, registration requirement is nothing new—they are already registering, (in the US, a one-time fee of $45; in the UK, annual fee of approximately £8—less, if you register for 10 years). What my proposal aims to do is to weed out abandoned “properties,” known as orphan books, from the active “properties.” Active properties of course do not have to be making money, and certainly if you think your book is one day going to be a big hit, you can keep it active by paying the annual registration fee to protect all of your copyright. But in order to identify all orphan books, everyone who has a copyright claim has to register first. If we don’t, Google would make a persuasive case for an alternative—a sort of Bush Doctrine for books.

It is probable that an aspiring author does not have $1950 or a similar sum for various international registrations, but a book would have its country of origin indicated inside, so a registration in that country should suffice to protect all aspects of copyright. If your country does not have a registration system then you should register with the US Copyright Office just in case—on the account of the US copyright law’s all-encompassing claims of jurisdiction over almost any book of any national origin. Yes, it’s the old USA again.

At any rate, a single instance of registration should be made to suffice, which can then be verified via the Internet. Additionally, various countries’ copyright offices can be networked via the Internet so that a single query at one of the offices should give the needed information. This was not possible at the time the last international copyright treaty was enacted, and probably the reason the treaty did not call for a worldwide registration system.

As to objecting to paying any fee at all, surely, if you an aspiring author, each of your book is worth at least $10 or £8 a year worth of continuous investment? Sure, your book might not be discovered for the next half a century, but that only comes to $500 (£400) in registration fees, and surely you intend to make that much in a week when your book is finally discovered, I presume? Besides, being able to tell anyone that your books are officially registered might just give you that heady feeling you need to keep your fledgling literary career going.

Suppose if you own a property and you didn’t pay the annual property tax, would you be asking the fairness question when the taxman cometh and sell you property? Or if you own an internet domain name and you forgot to renew the registration and someone else claimed it, would you? If you own a property, it is your responsibility to make sure it stays in your hand, especially if you intend to make money off it.

As for, making distinction between for-profit and non-profit, it is relatively simple: first the digitized files of orphan books are uploaded to a national repository, say the Library of Congress in the US, or the British Library in the UK (perhaps by tens of thousands of local library volunteers). Then the files are first made available for all public and school libraries free of charge. So if you have a library card, you have the free access to those books online.

Additionally, those national repositories would authorize such well-known non-profit free online libraries as Project Gutenberg, the IPL, Bartleby, and Internet Archive to add orphan books to their online collections. As to the non-profit designation, it’s decided by their taxation status. This should allow people without a library affiliation to access those books free of charge—thus giving not only the people in the US or UK the benefit, but also everyone else in the world that has internet access.

For more on this: http://asolutiontoorphanbooks.blogspot.com/

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Copyright duration

Any rule of the form "life + X years" seems rather unfair to me. Arguably it discriminates against old authors and is a form of age discrimination. Also, it makes it hard to know when something goes out of copyright, particularly when authors use assumed names or need to be anonymous.

How about changing the duration of copyright to 30 years from publication (which used once to be the rule in Poland, I think) and making it compulsory for copyright notices to include the year (which is probably already the case)?

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Copyright duration: another suggestion

OK, how about this:

You get 10 years copyright free of charge. If you want to extend it, go ahead, have another 10 years, that will be $1000 please (so I won't bother renewing all those poems I wrote for my wife). Not enough? No problem, extend from 20 to 30 years for a mere $10000 (and the majority of books drop into the public domain). Still not satisfied? At 30 years register for another 10 years for only $100000 (really popular authors only by now). To get from there to 50 years will cost you $1m (and JK Rowling - or her estate - and Disney Corp will probably consider it a bargain) and so on up.

This suggestion wasn't the result of hours of thought so you can probably point out a number of faults - the worldwide thing being the first that springs to mind - oh, and where should the money go? - but it does recognise that copyright has a monetary value and it stops publishing houses from holding back catalogues of books that they have no intention of ever doing anything with but that they're theirs so you can't have them.

I've been thinking books, mainly; I've no idea how this might work for music, movies, software, you name it.

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Anonymous Coward

@George Snyder

[weed out abandoned “properties,” known as orphan books, from the active “properties.”]

You do not need to weed out anything. All that needs changing is the limitation on 'commercial' use of a work whose copyright holder cannot be found. Something similar to a creative commons non-commercial license. That will allow most uses by libraries, academic researchers, and use on personal websites, whilst excluding a commercial exploitation of the work.

I for one DO NOT want my works used commercially, I do not sell them. I make them freely available to anyone to use so long as they are not using them commercially.

What I produce is only available outside of the commercial system. You are not able to buy it, nor accesses via a commercial outlet.

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It's fairly clear ...

... that many of the comments here are from people who have never written a book or had any involvement in publishing. My mother has written a number of books (www.magpiesnestpublishing.co.uk), and in reality they aren't all that likely to 'take off' given the number of books published each year and the inherent competition. On the other hand, J K Rowling got plenty of rejection letters telling her (to paraphrase) that her Harry Potter books were rubbish.

A good book does not come from nowhere. Mum's novels were years in the writing, others will spend years on researching detail for historically accurate subjects, and there are costs (if you want to be any good) for independent appraisals, corrections, etc. Then for most authors, there is the cost of printing short runs, and the pain of marketing them and trying to get your name known and your work noticed. Unless you've seen it first hand, you will not believe how depressing it is trying to "make it" in the literary world.

Then some smart-a**e comes along and suggests you should then have to pay to protect your work, or that your work should go into the public domain after some very short time.

Mind you, this is nothing to some commercial outfit coming along and basically saying "we are going to use this for our own purposes and if you don't tell us otherwise, we'll assume you don't mind".

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Who decides?

It sounds simple, but then who decides that the holder of a copyright cannot be found? Who does the search? Do we put a notice in a newspaper asking “would the person who wrote such and such book please come forward?” as we do in a similar fashion with the divorce proceeding in which the estranged former spouse cannot be found?

Well, actually, that is what this plan actually does, except that, instead of asking the question on a case-by-case basis, the mandatory registration plan asks everyone who has a copyright claim on a book to come forward and register.

This is the crux of the issue with orphan books. Even Google with its billions does not want to do the determinations on a case-by-case basis, for the simple reason that the current copyright system guarantees copyright based on the duration, not on the status of the copyright holder, such as whether the copyright holder can be found or not, or alive or dead.

So unless there is a blanket legal protection—which Google seeks in the Google Book Settlement for its own sole benefit, there is the possibility of the previously dead or the missing showing up one day with a cohort of lawyers claiming copyright infringement.

Google approach and my approach are essentially the same: whatever the book that was not registered (in Goggle’s plan, its own book rights registry; and in my plan, the US Copyright Office registry) after the registration period will be automatically regarded as, in Google’s plan, its free fodder; or in my plan, in the public domain for non-commercial digital distribution.

The major difference between Google’s and my approach is that Google wants to financially benefit either directly or indirectly from those books while not allowing its competition the same benefit and blanket legal protection; whereas my approach allows the public free access to the books without any attachment such as Google, as I believe those orphan books should belong to the American people and to the entire world.

The greatest issue is procedural, not definitional; that is, to decide how best we can identify orphan books and put them in the hands of the public.

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It is clear, indeed.

Dear Hobson, I am sorry to note but it is fairly clear that your mother forgot to tell you that she had to register her copyrights with the UK Copyright Service. It would be a shame if she did not register for a measly £37 for 5 years after spending probably thousands of pounds on other publishing expenses.

As I pointed out previously, the established writers already register—they know thy must. Their lawyers and publishers make them do so even if they didn’t’ want to. For an aspiring writer, it should be a no-brainer also. The reason is simple: within the next quarter of a century, most books will be published in digital format only. Most authors won’t have printed copies of their books to show to a jury in a copyright infringement suit that books are indeed printed with their names and the dates of their publication.

In the pre-digital eras, a printed copy of your book and your publisher’s corroboration on your copyright claim were usually sufficient to advance your claim of copyright ownership without registration. After all, in those eras, not everyone could publish a book easily, and a lot of other people had to be involved with your book venture who then could attest to your claim, but all that has changed with the advent of the era of the digitalization of intellectual properties.

The wonderful thing about digital publishing is that it reduces the cost of publishing enormously, allowing practically anyone who writes a book to publish without the involvement of publishers, printers, or editors. But without a hard copy of your book, how would you prove that the digital book is indeed yours in a civil suit?: by just telling the jury that it was posted on such and such day and website while the actual website is no longer in existence?

Here is another example: suppose your digital book was pilfered or plagiarized by someone in another country whose language you don’t speak. Furthermore, that someone starts making a small fortune selling “your” book without your knowledge. After a few years, that infringer is now an established author, while your book has been mostly forgotten or is still trying to make its first 100 downloads.

Now, imagine that foreign readers of your infringer’s book happens to notice you have an English version of the book on a website, and they bring it to the attention of the authorities claiming that you have stolen or plagiarized your infringer’s book! Now, how are you going to fight that if you did not register your copy with the appropriate copyright office? Do you think the infringer would admit to the wrongdoing voluntarily? I am not saying that you will never win, but without registration, it would make wining enormously difficult—and expensive.

On the other hand, by registering with the relevant national copyright office, you get the government on your side: the copyright office keeps a copy of your book, and the date of the publication is the date you registered it. It’s that simple! It’s well worth a small annual fee. Otherwise, I am afraid that many an author will be saying, why didn’t they tell me I should register, or why didn’t they make the registration mandatory?

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