Samuelson on Legislative Alternatives to the Google Books Settlement








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?