I heard of Google, for the first time, in 2002. We were still living in that 'old age' when Mega Crawler (or AltaVista) was the only 'gate' to the Internet. In 2003 I tried Google's search engine, and I never abandoned it since. In October 2004, I discovered Google translation, and I started using it to read German legal doctrine. The readings have covered just two or three pages of the original language, but the accomplishment was impressive.
By the end of 2005, I found Google Books service. Google was putting books online (for free) after digitizing them. I was quite happy. As an insatiable reader, initiatives to make the books easily accessible had my full and enthusiastic support. I discovered the parallel digitizing enterprise of Microsoft, the Live Search Books, in late 2006. I also found the Internet Archive and the Open Library.
Last but not least, I discovered the digitized books (PDF image files) of Gallica, the National Library of France's online project. Gallica was remarkable, especially about ancient science books from XVIIIth or XIXth centuries: treaties like "Almagest" of Ptolemy (the 1770 edition), the "Ancient Astronomy" of Delambre, the "Ancient Greek Geometry" of Paul Tannery, etc. It seemed ‘too good to be true’ since such a treasure cannot be on free access for long. Hence I started to print some of these books.
By 2008 Google Books’ repository became the richest among them all. I stopped printing books since I knew that they will be online forever. Google Books gave complete access (including downloads) to books published before 1880. The more recent texts, published mostly during the last 30 years, provided access only to specific pages. I started to use this limited access in my legal research, which saved me a lot of time and effort.
The most frustrating were the snippet views for books published from 1890 to around 1920. It was obviously an issue about copyright. Since copyright duration includes, in general, the life span of the author, plus another 50 years, these books were in limbo.
Let us consider a book published in 1900 by an author who was the copyright owner and died in 1922. The copyright would have ended by 1972. The book would be in the public domain by now, and Google may let online more than snippets. But to do that, Google must know, for sure, such details. In fact, the borderline between public domain books and in-copyright books is blurred.
Other books might be in copyright, but there is no way to know who is actually owning it.
This is the domain of 'orphan books,' in-copyright books for which it is difficult or impossible to contact the copyright holder. In fact, almost any work for which reasonable efforts to locate the present copyright owner fails can be considered orphaned. Since the cost of finding the owners is so high, other creators cannot build upon orphan works, even if they are willing to pay for it. And it seems that the vast majority of the world's books fall into this last category.
It becomes clear that snippet views in Google Books might be expanded to full page access if and only if the 'orphan books' realm becomes open. And Google tried to open it up...
In 2005 two lawsuits (Authors Guild v. Google, Sept. 20, 2005, and McGraw Hill v. Google, Oct. 19, 2005) charged that Google, with its digitizing project, has infringed copyright and failed to compensate authors and publishers.
In October 2008, after two years of negotiations, was reached a settlement between the publishing industry and Google. Google agreed to compensate in exchange for the right to make millions of books available for the public. According to the agreement, Google might scan orphan works without being held liable for breach of copyright if the right owners subsequently came forward. This ‘opt-out’ regime for copyright was an unprecedented advance.
Very interested in the issue I published in May 2012, a paper about Transatlantic answers for the challenge of orphan books: Google’s Books settlement and its European counterpart: http://dx.doi.org/10.2139/ssrn.1935306.
Based on materials retrieved before February 2012, I evaluated Google's agreement (ASA) with copyright owners after its unexpected rejection by a US federal judge. My research also assessed the advancement made in Europe about orphan books.
Where are we today, almost two years (after that publication)?
In the US, the only initiative that still tries to deal with the issue is the Orphan Works Project (OWP) set up by HathiTrust and Michigan's Library. The project strives to identify orphan works from the years 1923-1963 and to sort out their copyright status.
But it came under attack for not doing an adequate job in finding copyrights holders. The Authors Guild, along with other professional groups and individual authors, filed a lawsuit in September 2011, seeking to shut down what they called "the systematic, concerted, widespread, and unauthorized reproduction" of the copyrighted material.
Concerning the 'orphan books' pledge, the judge said he did not have enough information to rule on the OPW project. Therefore this project is still active on this issue.
But it came under attack for not doing an adequate job in finding copyrights holders. The Authors Guild, along with other professional groups and individual authors, filed a lawsuit in September 2011, seeking to shut down what they called "the systematic, concerted, widespread, and unauthorized reproduction" of the copyrighted material.
Concerning the 'orphan books' pledge, the judge said he did not have enough information to rule on the OPW project. Therefore this project is still active on this issue.
On the other side of the Atlantic, there were certain advancements concerning orphan works at the European Union or national level.
On October 25, 2012, the European Union adopted the Directive 2012/28/EU about specific permitted uses for orphan works. The directive sets out standard rules for digitization and online display of orphan works and elaborates rules for identifying these works. It also establishes that if a diligent search does not identify or locate copyright holder(s), the work shall be recognized as orphaned. Then, by mutual recognition, this status shall become valid all across the European Union.
At the national level, the most advanced initiative came from France.
A bill (analyzed as a legal project in my paper) was finally adopted (Bill No. 2012-287 of March 1, 2012, which amends the Code of Intellectual Property). All books published before December 31, 2000, which are ‘out-of-print’ (around 500,000 books) and those in publishers' catalogs, are concerned.
The bill created an institution for collective management of digital rights (SOFIA). The National Library of France is responsible for maintaining a database, the public online Registry of Unavailable Books. This Registry is enriched once a year with a new list of titles (for example, in March 2012, there were added 60.000 more titles). At this pace, less than ten years from now, the Register will include all French books of the XXth century.
The bill created an institution for collective management of digital rights (SOFIA). The National Library of France is responsible for maintaining a database, the public online Registry of Unavailable Books. This Registry is enriched once a year with a new list of titles (for example, in March 2012, there were added 60.000 more titles). At this pace, less than ten years from now, the Register will include all French books of the XXth century.
Within six months after registration of a book, right holders may object to the collective management system (SOFIA). Without that opposition, the rights are not sold but transferred to SOFIA, ensuring the system's proper functioning.
One can identify an ‘opt-out’ mechanism, similar to the one envisioned by Google with his agreement (ASA). Even the institutional aspects are alike. However, if ASA was concerned just Google and was finally unsuccessful, France produced a legal instrument with general effects that seems to work.
However, one must agree that the push came from Google pursuing its dream of a universal digital library. We, the readers, should be very pleased…
