'Orphan' Tug of War

January 29, 2010

Another deadline has passed for filing commentary on the pending settlement between Google and major associations of American authors and publishers over Google Book Search, the controversial project that aims to scan millions of books into a searchable electronic database.

And while the majority of higher education groups that have commented publicly on the agreement have agreed that it will be good for scholarship, a group of 80 professors from around the country this week wrote a letter to the court, raising new concerns regarding the fate of unclaimed “orphan works” under revisions made to the proposed settlement in recent months.

Penned by Pamela Samuelson, a law professor at the University of California at Berkeley, the letter says its signatories have the same goal that a number of advocacy groups and institutions argued for when they filed briefs supporting the settlement in September: They want the millions of books in Google’s database to be as available as possible.

But the letter says that the infrastructure of the project proposed by the settlement, which has been amended since September, was designed with an eye to profit, not access. It blames the Authors Guild and the Association of American Publishers, the two major entities with whom Google is trying to settle, for collaborating with Google on a model that would withhold free access to the unclaimed “orphan works” that are believed to make up about 20 percent of its database -- instead putting them behind a subscription pay wall.

The revised version of the settlement agreement would create a fiduciary who would oversee the unclaimed works and make sure that nobody profits unduly from the funds generated by their inclusion in the database. The letter takes issue with the fact that the fiduciary would not be allowed to make those digitized “orphans” available free.

“We believe that most unclaimed works in the [Google Book Search] corpus will prove to be books written by scholars for scholars, and most such authors would prefer that their out-of-print books be available on an open-access basis,” the professors say in a public draft of the letter. They note that Google has been farming the shelves of major research libraries, where many such books reside.

But Paul Aiken, executive director of the Authors Guild, told Inside Higher Ed it would be “inappropriate” for the fiduciary to decide that an unclaimed work should be free without permission from the copyright holder. Aiken said that the proportion of unclaimed works in the Google database had been “greatly exaggerated by opponents of the settlement,” and noted that the settlement compels the Books Rights Registry -- the third-party entity in charge of collecting and disbursing revenue -- to actively seek out rights holders.

Based on the paper trail associated with copyright ownership in the case of printed books, Aiken said, many of the rights holders are likely to be found -- at which point they can decide for themselves whether to make the digitized versions of their books free under Creative Commons licenses.

Paul Courant, dean of libraries at the University of Michigan, said he thinks that rather than calling on the court to engineer the structure of the settlement to point toward open access, scholars should take matters into their own hands using the mechanisms that are already there. “We ought to start a movement to make sure every academic executes a Creative Commons license, so that their digitized work will become freely available,” said Courant, who has publicly supported the pending settlement. He said such a push could start a snowball effect in favor of free access.

The 80 professors who signed the new letter point to the authors and publishers that have joined them in objecting to the current incarnation of the settlement and argue, “The more numerous are the requests to exclude books from the [Google database] or the settlement, the less likely it is that the public benefit of the promised 10 million book database will materialize.”

But while Courant said he was “empathetic” to the professors’ concerns, he warned that exposing the settlement to endless layers of arbitration would be more damaging to scholarship than if the court approves it. Academics who care about the availability of books, he suggested, need to recognize the difference between broad access and free access.

“The hard question is, do we really expect all the bad outcomes to happen and what do we think the alternatives could be?” he said. “…The alternative to the settlement is not free access to all these works; the alternative is pretty bad access to all these works.”

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