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November 08, 2009

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David, your post highlights why something like GBS may be the only possible solution to the vexing issue of illustrations in books. You state that "standard stock photography contracts almost always explicitly specify rights, print runs, editions etc so the default 201(c) would hardly ever apply." Yet my recollection is that in one of the National Geographic Society cases, there were only 7 photographs that had contracts that limited NGS's future use of the illustrations. I have seen book contracts where the author was required to secure copyright transfer of all the illustrations in the book. Given the exceptionally long time that copyrights endure, one cannot also assume that what has been standard practice for the last 25 or 50 years was standard practice 75 years ago. I even just read a case in the UK that dealt with photographs in newspapers. In that case, the standard practice was for the photographer to turn over photos to the paper. The paper might decide to publish that photo in the future. If they did, the license agreement was negotiated after the photograph was published!

So I believe that we are in agreement that identifying a clearing rights for illustrations in books would be an impossible task - even though books without illustrations or photographs are not nearly as desirable. It will be interesting to see how Google approaches this intractable problem.

Peter, standard stock photography contracts almost always explicitly specify rights, print runs, editions etc so the default 201(c) would hardly ever apply.

The Tasini decision http://j.mp/2uVNCL also affirmed that absent any specific instructions electronic right do not ensue.

It is for this reason that negotiating rights would be impossible for practical purposes. Furthermore, for out of print books, even finding the image rightsholders would be a formidable task.

As for the photo or illustrator groups coming to agreement with Google is is difficult to see that happening without legal action and some kind of settlement and statutory license and I agree with you that expectations of revenue may be unrealistic.

It is difficult to see how this may be resolved, even though from the perspective of the reader/public intact books are much, much more helpful

ref Title 17m Section 201(c)

"In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

David, thanks for the comment. Clearly for many books not having pictures, maps, and illustrations would greatly decrease (though not eliminate) their usability. I suspect for these books, the Google database will be more like the search engine that Google originally envisioned. Users will find books for which illustrations are needed and request those books on loan from the libraries that own them. If the choose instead to purchase the bowdlerized versions and are disappointed, that is a marketing problem for Google but not of concern to libraries.

I do hope that Google can figure out a way to include illustrations. If GBS is approved, Google will be distributing the books on behalf of the copyright owners of the edition, which makes me wonder if 201(c) could be used to justify including illustrations and maps. Alternatively, Google might decide to follow those courts that concluded that registering or renewing a copyright in a book did not automatically register the copyright in all the component parts of the book - which would inject many of the illustrations into the public domain.

I do worry that photographers and illustrators may have an inflated estimation of the value of their contributions, and as a consequence attempt to throw roadblocks in the face of this desirable project. $45 million has been set aside for the rights holders in the settlement. If you assume that there are 10 million digitized books, and that copyrighted illustrations and maps constitute 1% of the pages in those books (not an unreasonable assumption, I think), then a comparable payment to all illustrators, photographers, and mapmakers would be $450,000. While this is more money then they are getting now from these titles (which is nothing), it hardly seems worth the bother. A lawsuit on behalf of illustrators would only benefit the lawyers. I hope, therefore, illustrators will opt not to shortchange readers (which I agree is what will happen), but instead be happy that their work is becoming better known (and may lead to more future commissions).

Klaus, congratulations on the book. I look forward to practicing my German while reading it.

The opt-out method has worked well for web sites, and it would work well for books. Unfortunately, the plaintiffs in the Google case think otherwise.

A colleague has pointed out to me that Ken Auletta has an interesting quote on this in his new book, Googled (which I haven't read yet). He reportedly says:

"If [Google] had had a copyright lawyer among their founders, they never would have started the company. The basic business of a search engine is to copy everything. To make your copy, and then search it. The first thing that happens, arguably, is infringement of copyright law. I say 'arguably' because there's never been a case on it. From day one, Google went out and copied the whole Internet. Can you imagine a company starting in the film world and the first thing they did was make a copy of every film in existence? That company couldn't have gotten started. The Web is always about copying, but copyright law is about making copying illegal." (127)

Peter, as an archivist what is your perspective on offering books for viewing, or even for purchase, with all of the photographs, maps, illustrations and paintings redacted?

Negotiating rights for visual works, which currently are excluded from the settlement, will add multiple layers of complexity, both for out-of-print works and orphan works.

Yet until this issue is addressed, the public and the visual rightsholders will be shortchanged.

Great Post, Peter.

In the European context there is a clear analogy for an opt-out model which is working since years. The first search engines (Altavista etc.) have clearly violated copyright when integrating by COPYING websites in their index without asking the rights holder. There is no exception for this in European copyright legislation until now!

For my own thoughts on Google and orphans see my new book in German available for free (and CC-BY-SA) under http://www.contumax.de

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