And adult approach to digitizing library holdings

I have long believed the copyright concerns that have hampered the digitization of library holdings are way overblown, especially in light of the value to be gained by digitizing the contents of libraries and making them available for research online. So it is gratifying to see that the libraries of Duke University, North Carolina Central University (NCCU), North Carolina State University (NCSU), and the University of North Carolina at Chapel Hill (UNC) have issued a report — The Triangle Research Libraries Network’s Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Records Groups (pdf) – that, as Library Journal describes it, “urges libraries to make large-scale special collections available online, even if some question about the copyright status of certain elements remains.”

The document sets forth a comprehensive strategy for addressing copyright concerns that digitization raises. It doesn’t shy, however, from asserting the legitimacy of the project as an exercise of fair use: “In the unlikely event that a TRLN member library is challenged on the presentation of the digitized collections/groups, and in the even more unlikely event that the library is unable to resolve those challenges…the library will rely on a fair use argument.”

And the document sets forth its fair use analysis clearly and concisely, addressing each of the factors of the 4-part fair use test as follows:

Fair use is a balancing test based on . . . four factors. The factors are not a list of requirements, and all four factors need not be met to have a successful fair use argument. Each factor as it might pertain to the CCC project’s selected manuscript collections and archival record groups is addressed below.

The purpose and character of the use

The CCC project is not for profit; the project’s purpose is to promote historical scholarship and support educational uses of primary sources by providing free and open online access to a large corpus of research materials: the digitized manuscript collections and archival record groups from the four libraries. Individual documents contained in the collections and groups may remain under copyright protection, but they are used in this project for research and educational purposes.

The character of the use is transformative. An individual document’s original use was temporally bound, its value practical. For example, at the time that any individual letter in the Frank Porter Graham papers was written, it served only to share information with Graham. But now that letter is part of a manuscript collection that contains more than one hundred thousand documents. And as with any individual item in a manuscript collection/archival record group, the document serves as a small part of a larger resource, one used in scholarly inquiry and education. The aggregation and organization of individual documents to create manuscript collections/archival record groups transform the purpose and function of the individual documents, as do the finding aids for these collections/groups, which also add to the research value. The digitization and online presentation of the documents in the collection/group further remove the individual document from its original purpose, and deepen its transformed purpose and use as a historical resource that contributes to our understanding of the past.

The nature of the copyrighted work

Most of the documents in the manuscript collections/archival record groups were created in the course of the daily life of an individual or in the routine business of an organization. Created without commercial motivation or artistic intent, these works were not meant for publication at the time of creation, and today are not publishable in isolation. The research value of manuscripts lies not with the individual document, but rather with the collection of documents that together provide context and insight into the past.

The amount and substantiality of the portion used

The presentation of entire documents and entire collections/record groups is therefore appropriate for the intended use by students, educators, and scholars. Individual documents in the collections/groups are the copyright?protected works; but the law does not specify a particular amount of a work that can be used without permission.

The educational and transformative purposes of the use require the presentation of the works in their entirety and so satisfy this factor.

The effect of the use upon the potential market

The scholarly research value and educational significance of these collections are incalculable, but their aggregated online presentation will have little to no effect on the market value of individual documents. In virtually all cases, no such market exists. In the rare instance in which an individual document has a commercial market, the downloadable digital images will not be of commercial quality and therefore will pose no threat to that market.

A National Public Library? There’s nothing to stop it other than a lack of political will to do anything useful.

Robert Darnton calls for a National Digital Library — “a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world.” I agree with him that the project is neither naive nor utopian. Several countries have already committed themselves to the creation of their own national digital libraries:

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

Darnton concludes that the U.S. “should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.” And he therefore sees the legal issues — particularly dealing with “orphan works” – as the principal barrier to a U.S. National Digital Library.

Unfortunately, I disagree with Darnton regarding the main impediment. As I’ve explained “orphan works” are “works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.” I’m not sure I see any particular problem with Congress enacting legislation amending the Copyright Act to authorize a National Public Library to use works whose copyright owners cannot be identified under terms that provide for reasonable compensation when and if owners make and establish their claims.

I think, however, the cost is a real impediment in the current economic climate. €750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount, the current political climate hardly seems ripe for Congress to take the initiative on a project that would strike much of the citizenry — and certainly most U.S. politicians — as intellectual frivolity. It isn’t, of course, but one can be sure that massive confusion over the rights of authors (as I’ve touched on here, among other places) could be used to demagogue to death a billion dollar project longed for by a bunch of professors.

It is hereby permitted to reprint my silliness.

In a call for a National Digital Library, and borrowing heavily from Lewis Hyde’s Common as Air, Robert Darnton contrasts 18th Century views on the free exchange of information with certain views today:

I know: the devil can cite Jefferson. Anyone can cull through the papers of the Founding Fathers in order to find quotations in support of a cause. But I can’t resist. Here is Jefferson again:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea…. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Jefferson was thinking about the effects of printing, of books, and of reading—a favorite subject of the Founding Fathers. Here is Franklin:

The art of printing…diffuses so general a light…that all the window shutters despotism and priestcraft can oppose to keep it out, prove insufficient.

And John Adams:

And you, Messieurs printers, whatever the tyrants of the earth may say of your paper…are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

“Despotism and priestcraft” have an antiquated ring to them, but the danger of restricting access to knowledge is as great today as it was two hundred years ago. Here is a copyright notice attached to a recent electronic edition of Alice’s Adventures in Wonderland, which was first published in 1865:

Copy: No text selections can be copied from the book to the clipboard….

Lend: This book cannot be lent to someone else.

Give: This book cannot be given to someone else.

Read aloud: This book cannot be read aloud.

Contrast that statement, made only yesterday, with the following remarks by Voltaire after the publication of his Questions sur l’Encyclopédie in 1772: “It is hereby permitted to any bookseller to [re]print my silliness, be it true or false, at his risk, peril, and profit.” As Lewis Hyde put it in his recent book, Common as Air, an enclosure movement is threatening to destroy our cultural commons, the world of knowledge that belongs to us all.

Is Google no longer the Copy-Left’s white knight?

Google has been a very interesting company to anyone concerned with copyright law.  Google has taken on lawsuits raising issues others don’t have the resources to fight over, and Google has been very effective in making good arguments in those cases.  Fred von Lohman now wonders if those days are gone:

Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. . . .

The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. . . .

Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google’s legal investments have paid dividends for the entire Internet innovation economy.

Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem – but not anyone else’s. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.

Settlement imminent in lawsuit against the Google Library Project?

I’ve long been fascinated by the Google Library Project, considering it one of the greatest boons to research since Gutenberg. I’ve written on this blog of my bafflement at its opponents, especially those authors who fear their inclusion within the project. I’ve written elsewhere at the utter misconceptions that govern some views of the project. (I have, however, been called a “dickwad” for pointing out these misconceptions, a characterization unsupported by reference to any law.)

The good news is that, as Open Access News reports, “Andrew Albanese reports in Library Journal, October 10, 2008, that Google and a group of publishers may be close to settling the publishers’ lawsuit against the Google Library Project:

Nearly three years after its initial filing, it appears a settlement may finally be near in publishers’ lawsuit over Google’s controversial program to scan books from library shelves. Although rumors of a settlement have flared up and died down intermittently over the years, sources wishing to remain anonymous this week told the LJ Academic Newswire and Publishers Weekly that talk of a final agreement has indeed heated up, with one publishing insider confirming that a settlement was “imminent,” although no solid time frame was known….

A settlement has long-been expected, as it would avoid what is setting up to be a messy trial. Industry-watchers have predicted the two parties eventually would reach some kind of blanket license agreement, noting that avoiding a court decision involving murky copyright and fair use boundaries is the logical, least risky-and least costly-option for both parties.

From the start, publishers have maintained that the wholesale scanning of copyrighted books from libraries is an unreasonable expansion of fair use, and that Google is creating a valuable asset without compensating rightsholders. Google has countered that its plan, which makes only “snippets” of copyright-protected books viewable online, is fair use, and that publishers, can also “opt out” of having their books scanned….

[T]he AAP suit, filed in October 2005 on behalf of McGraw-Hill, Pearson Education, the Penguin Group, Simon & Schuster, and John Wiley & Sons, does not seek damages. It seeks an injunction that would essentially declare that Google’s scanning of an entire book still under copyright without permission is infringement. . . .

Ruling Imagination: Law and Creativity

What are you thinking, Herb Mitgang?

The knee-jerk reaction some writers and other artists have to any unauthorized use of their copyrighted works often baffles me.  Artists often react viscerally to any unauthorized use of their creations even when doing so fails to serve, as far as I can tell, any legitimate personal interest they might have.  It’s as if they simply think: it’s my property, and no one can touch it unless I tell them they can!

The Association of American University Presses provides a useful summary of the Google Book Search Program:

Many university and scholarly presses have participated enthusiastically in the Publisher program, which allows their print publications to be indexed and displayed to an appropriate extent through Google’s beta online index of print materials while protecting their own, their authors’ and third parties’ rights. The Library program has proven controversial, as Google plans to scan, digitize, and copy not only public domain works from five world-class research libraries, but also the in-copyright collections of at least some of those libraries. The libraries are the Bodleian at Oxford University, Harvard University Library, the University of Michigan Library, the New York Public Library, and Stanford University Library.

It is important to understand that Google is not merely copying the libraries’ collections in order to make them available electronically to the world.  Instead, Google Book Search allows its users to search the entire database of what Google has thus far scanned.  For works by authors who have granted Google permission, a user of the Book Search can scan read the entire text.  But for those who have not expressly provided that permission, a search through Book Search will turn up only books containing the searched terms along with snippets of approximately 3 lines around the searched terms.

In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their research in libraries they could not possibly ever have visited.  They then can obtain the books, either through inter-library loans or through online purchases.  Without Google Book Search, in other words, myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast majority of people with interest in them.

Which brings me to Herbert Mitgang.  Mitgang is one of the named plaintiffs in the Authors Guild lawsuit seeking to shut down the Google Library Project.  Mitgang was born in 1920, and since the 1950s he has been a prolific writer in numerous genres, from journalism to fiction to biography.  Among his books are three on Abraham Lincoln.

Mitgang, however, is hardly a household name.  His books on Lincoln are still in print, but, despite my acquaintaince with several amateur Lincoln-obsessed readers, none of them have read any of Mitgang’s Lincoln books.  Mitgang is 87 years old.  It seems quite likely therefore that, within a decade or so, the only feasible way Lincoln researchers will be able to obtain his books will be from the collections being scanned by the Google Library project.

In short, I cannot begin to imagine why Mitgang wants to shut down the Google Library Project.  Without it, his books will likely fade into oblivion.  On the other hand, if the Google Library Project is a success, there is every possibility that future Lincoln researchers might come across and use Mitgang’s Lincoln books.  I wish I could get in a room and ask him: Why are you doing this?  Do you really want your life’s work to disappear entirely from the sight of future researchers?

My sister, a lifelong writer, for years bristled at my views of copyright.  She’s come around.  The fact that the entire corpus of one genre she’s worked in for decades, the retelling of folk tales for children, is available online has, she’s realized, made her more visible, more attractive to publishers, students, and producers of other media.  Exposure is, it seems, the lifeblood of an artist; putting one’s work behind a fence, on the other hand, will only make it invisible.

I wonder what Herb Mitgang thinks of that?