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Now millions of orphan books may get a new legal guardian. Google has been scanning the pages of those books and others as part of its plan to bring a digital library and bookstore, unprecedented in scope, to computer screens across the United States.
But a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.
While the registry’s agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.
Now, I am a bit surprised by this conclusion. IMHO if a book is orphan, everyone should have unlimited access to them, regardless of the fact that there is no body to grant an authorization for these books, and most importantly regardless of the fact that Google spent money digitizing these books.
It is Google's problem that they digitized these books and it cost them money, but the process of digitizing does not grant them any extra right over these books.
If I photocopy a non-copyrighted book and sell it, I believe I am allowed by the law to do that. And anyone else is allowed to do the same, even photocopy my photocopy of the book and sell it. No?
If I understand Google's position, there's nothing keeping anyone else from scanning orphan books, creating their own digital library, negotiating the same terms as Google did, and proceeding to exercise unique licensing control over THEIR scanned image of the same books Google has.
The other side replies: and who would do that, now that Google's done it once?
My take: orphan works are a real problem. It was a great misfortune when the U.S. abandoned its principled stand on copyright (that everything had to be done in such a way that the public domain was clearly defined and constantly increased) and caved to the Robber Barons of Europe.
And Google has tried to address that. Well, it's a good thing for the world, AND a good thing for the copyright holders (if they ever show up). After all, there are no royalties from out-of-print works!)
If what Google says is really true (anyone with a scanner and a friendly library can join the game) and what the opposition says is really true (that there's gold in them thar scans), it seems to me that there's a real motivation for other people to search out yet other libraries that haven't been scanned, to build and license their own competing digital archives.
If there's no gold there after all, it doesn't matter what Google says. Call the library a nonprofit (because nonprofitable) public charity--everyone has to have one for a public image at least, and this can be Google's.
If there's gold, then there's room for competition. Google's efficiency of operations is going to put real pressure on the competition -- remember how long Microsoft's much-vaunted competitive effort lasted! And it begins to matter whether other people can negotiate similar terms.
If they cannot, though, whose fault is it? Google's, for not doing anything one way or another? The libraries and copyrightsholders, for pricing Google competition out of the market through stupidly stubborn bad-faith negotiation?
And is that failure necessarily permanent? Or could another generation of less greedy rightsholders and more efficient collection-scanning organizations introduce competition even if the second attempt fails as quickly as Microsoft did?
It doesn't seem right that anyone else could STOP Google from giving away for free what the authors intended to give away for free either.
But what's involved here is authors who can't be found to say whether or not they want to sell, or give away. The issue of "orphaned works" is is an extremely serious problem, recognized by the Library of Congress, which daily results in irrecoverable loss of cultural artifacts.
Google has simply built an orphanage. And if the authors have lost something by simply disappearing, they would have lost more if their works had disappeared--but permanently.
I read this as them wanting to ensure they have the same rights to preserve orphaned works as Google does. But there is a complicating factor: IA is a pure nonprofit (and therefore buying off the noisy protestors (paying protection money/royalties to a fund( may not be an option, as it is for Google.
Disclosure: I'm a (very small-scale) IA contributor. Some of my IA contributions have included PDF files originally from Google Books.