LibraryLaw Blog

The Google Book Settlement and the Public Domain

Shortly after the Google Book Settlement was announced, a colleague wrote to ask what I thought of its procedures for identifying public domain books.  I gave a quick response, but promised a more detailed analysis.  Here it is, months later. 

My quick assessment: the settlement specifies procedures that are likely to identify most public domain works published in the United States.  It is less helpful for foreign publications that may have entered the public domain; they are largely absent from the process.  Unfortunately, because this is part of litigation rather than legislation, no one else can take advantage of the results of the process - it moves us no closer to having a growing public domain.  What is unknown is to what extent Google will want to remove titles from the licensed products and make them freely available to the public.

Califa posted presentations/handouts from its recent digitization symposium

Lots of good presentations at the Califa Digitization Symposium January 2009

• Imaging/Tech Issues: John Sarnowski
• Primary and Archival Resources: Adrian Turner of the California Digital Library
• Newspapers - creation/access: Christine Guenther of OCLC
• Rich Media: A Corporate View: Chris Orr: consultant, Librarian and digital archivist
• Local History Digital Resource Projects/State funding: Ira Bray of the California State Library.
• Creating a Management Plan: Trudy Levy
• Aren’t Those Plaid Bell-bottoms Groovy? Thea Blair of Mission Viejo Public Library
• The Good, The Bad, & the Ugly: Digitizing on a Shoestring: Susan Goldstein of San Francisco Public Library: Slides
• The Good, The Bad, & the Ugly: Digitizing on a Shoestring: Susan Goldstein(SFPL): Word Document

Can Darnton live the Enlightenment dream?

Robert Darnton's long, reflective piece on "Google & the Future of Books" in the New York Review of Books is justifiably generating a lot of buzz.  There is much I can admire in the piece.  For example, Darnton stresses the importance of having an open cultural heritage:

Yes, we must digitize. But more important, we must democratize. We must open access to our cultural heritage. How? By rewriting the rules of the game, by subordinating private interests to the public good, and by taking inspiration from the early republic in order to create a Digital Republic of Learning.

In a passing comment, he suggests that he thinks the original 28 year maximum term for copyright may be better than our current term of life + 70:

I acknowledge the importance of copyright, although I think that Congress got it better in 1790 than in 1998.

These are inspiring sentiments with which I generally agree.  But while they are easy to espouse, they are much harder to implement.  To illustrate this, we need only look at Robert Darnton's own works.

If we assume a 28 year copyright term, all books published by Darnton prior to 1981 should be in the public domain (or at a minimum freely available).  Yet according to the records in WorldCat, of the books that Darnton authored before 1981, only one (The Business of the Enlightenment) is available in electronic form, and that is only available through the subscription product ACLS Humanities E-Books.  Other important works, such as Mesmerism and the End of the Enlightenment in France, are totally inaccessible electronically.

Let's hope that as a first step in "subordinating private interests to the public good," Professor Darnton liberates his own works. 

When is a published work not a publication?

It is easy for court decisions that are issued in December to get overlooked in the holiday crush.  Some Appeals Court rulings in the important case of Societe Civile Succession Richard Guino v Renoir are good examples.  Rebecca Tushnet has written on the trademark aspects of the decisions, but I haven't seen a discussion of the copyright decision.  This is an important ruling that has implications for many mass digitization projects.

The case concerns sculptures created in France by Pierre-Auguste Renoir and published in France no later than 1917.  Most commentators (including the Copyright Office) argue that because publication occurred before 1923, the works are now in the public domain in the U.S.  As I discuss in footnote 12 of the copyright duration chart, however, a ruling in the Twin Books v Walt Disney case in the 9th Circuit (covering the western states) contradicts what everyone else assumes.  In Twin Books, the court concluded that if a foreign work did not follow the requirements to secure copyright protection in the US, the work did not therefore enter the public domain in the US, but instead remained in effect unpublished for the purposes of US copyright law. 

The District Court opinion in the Societe Richard Guino case harshly criticized Twin Books, but then found copyright infringement because it was forced to follow the opinion of its Appeals Court.  Many of us hoped that an appeal would lead to a reversal of the Twin Books decision.  Unfortunately, in the latest decision, the Appeals Court upheld the lower court's finding of infringement.

The good news, if there is any, is that in part the decision is based on the fact that a 3 judge panel can't overturn Twin Books by itself - it requires a decision by the full court.  What is disturbing, however, is that unlike the District Court, there is no criticism of Twin Books in this decision.  Instead the Court sings the praises of Twin Book's reasoning that a book that has only been published abroad isn't really published for the purpose of US copyright law. 

What are the implications of this for digitization projects, especially those based in California (such as Google Books or the Internet Archive)?  The decision makes it much, much harder to determine whether a book published abroad is in the public domain.  I have written about how difficult it is to determine whether any individual post-1923 title had its copyright restored, but I assumed that pre-1923 works were public domain and that Twin Books would eventually be reversed.  The newest ruling makes me less certain this will happen.

So what do Google, the Internet Archive, and other western digitization projects need to do if they do not wish to risk copyright infringement?  First, the projects would need to determine if the works were ever published with a copyright notice.  For the 9th Circuit, publication occurs (and the copyright clock starts ticking) when there is publication with notice.  In the Societe Richard Guino case, copyright in the images found in the 1917 book was secured in 1984.  Copyright in those images will endure until 70 years after Guino's death in 1973, or through 2043.  Reproducing and distributing the 1917 book before 2044 would be a violation of the Societe's copyrights. 

Second, the projects would need to see if the work was published in a Berne Treaty nation after 1 March 1989, when notice requirements were abolished.

Third, for those pre-1923 works that were never republished with a copyright notice or after 1 March 1989, the projects could determine the death date(s) of the author(s).  If the authors all died before 1939, the works would be in the public domain in the 9th Circuit since, as "unpublished" works, the life+70 term would have expired.  (Actually, any foreign work that was never republished and whose author died before 1939 would be in the public domain in the 9th Circuit, regardless of death date.)

Obviously, no project will be able to conduct this sort of copyright investigation.  The safest course, therefore would be to select a date before which there is almost no chance that an author is still alive.  Some UK projects (which have a blanket life+70 term) use 1868 to 1888 as the cut-off publication date, on the assumption that authors are probably at least 20 when their books appear, and then one estimates a subsequent life span to determine when the author is sure to be dead.  (If you assume someone lives to 70, you can use the 1888 date.  If you think the author will live to 90, then the 1868 cutoff must be used.)  The problem, of course, is that this excludes much more material than the 1923 publication cut-off date that many of us use.

Bottom line: let's hope that this decision is appealed to the full Appeals Court, and that court finally replaces it's twisted logic in Twin Books with the clear certainty of copyrights restored under 104(a).

Ancestry's grants to archives: A good deal?

Word is slowly spreading about Ancestry.com's new grant program for state archives.  Ancestry is promising to provide $1.5 million dollars in digitization services (though no money) to state repositories.  Best of all, it has promised to keep the application requirements simple.  The program is described at http://www.ancestrydps.com/programs.htm.

No archives has enough money for digitization, so the natural question to ask is whether this is a good deal for archivists and for the public.  Unfortunately, the terms described in the agreement appear to be a step back from the terms Ancestry recently negotiated with NARA.  And even those terms came under sharp criticism.  Archivists thinking about the Ancestry program may wish to move cautiously.

Breaking News: Digital Promise legislation passes

Digital Promise Passed by Both Houses of Congress

On Thursday, July 31, 2008, the legislation to create the Digital Promise was passed by both the House and Senate as part of the reauthorization of the Higher Education Act.  It is expected to be signed into law by President Bush within days.

The name has been changed to the "National Center for Research in Advanced Information and Digital Technologies."  I much preferred "Digital Promise" but the main thing is that the legislation has passed.

What it will do: It will create a Congressionally originated 501(c)(3) nonprofit corporation within the U.S. Department of Education.  It will have a nine-member independent Board of Directors appointed by the Secretary of Education from nominations by members of Congress.  Grants and contracts will be awarded on merit, and policies will be developed following the tested procedures of NSF and NIH. The Center will be able to receive grants, contracts, and philanthropic contributions, as well as federal appropriations.  See the National Center section of the bill <http://email.fas.org/listman/users/link.php?UserID=52940&Newsletter=418&List=2&LinkType=Send&LinkID=2059> .

Next steps:  The next challenge is to secure FY09 appropriations for the Center.  Because of the delay in passing the Higher Education Act, it was not possible to be included in the appropriations bills that were passed in Committee in June.  Nevertheless, the Digital Promise team is working to have funding for the National Center included in final appropriations legislation.  They are requesting $50 million for FY09.

Once funded, money should be available for library and educational digitization projects, among other digital projects.

Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status

So a new article I have written was published today.  It is entitled "Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status."  Here is the abstract:

It has long been assumed that most of the works published from 1923 to 1964 in the US are currently in the public domain. Both non-profit and commercial digital libraries have dreamed of making this material available. Most programs have recognized as well that the restoration of US copyright in foreign works in 1996 has made it impossible for them to offer to the public the full text of most foreign works. What has been overlooked up to now is the difficulty that copyright restoration has created for anyone trying to determine if a work published in the United States is still protected by copyright. This paper discusses the impact that copyright restoration of foreign works has had on US copyright status investigations, and offers some new steps that users must follow in order to investigate the copyright status in the US of any work. It argues that copyright restoration has made it almost impossible to determine with certainty whether a book published in the United States after 1922 and before 1964 is in the public domain. Digital libraries that wish to offer books from this period do so at some risk.

The article appears (in slightly abridged form) in D-Lib Magazine at http://www.dlib.org/dlib/july08/hirtle/07hirtle.html.  It is available in its full form at http://ecommons.library.cornell.edu/handle/1813/10884.  It has also been submitted to SSRN, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160006, but I do not believe it is available through them yet.

The messy, messy copyright status of Edison phonograph recordings

In Tim Brook's excellent CLIR report Survey of Reissues of U.S. Sound Recordings, one finds the following statement:

One notable component of the public domain for recordings is the body of recordings made by the companies of Thomas A. Edison between 1890 and 1929. Legal title to those recordings did pass to a successor company; however, in the 1950s that company conveyed title to the U.S. government as part of an agreement with the U.S. Parks Department. Thus, Edison recordings can today be used without restriction.

The wonderful UC Santa Barbara (UCSB) cylinder preservation project web site repeats this assertion in its statement on copyright:

All Edison cylinders are presumed to be in the public domain as the assets of Edison Records were transferred to the National Park Service, a federal agency.

The National Park Service (NPS) itself doesn't go quite so far.  It notes instead that it "does not presume that all Edison recordings are in the public domain," but nevertheless will make copies of the recordings for users according to the exceptions in Federal copyright law (even though these recordings are not protected by Federal law, but rather by state common law copyright).

So which is right?  Are Edison recordings public domain, or are they still protected by state common law copyright?  A little while ago I decided to investigate.  Through the courtesy of the Edison National Historic Site, I was able to get a copy of the 1957 donation contract (actually of Bill of Sale) from McGraw-Edison Company (the successor to Edison's company) to the Park Service.  The Bill of Sale states clearly that McGraw-Edison was transferring "property, goods and chattels," along with "all privileges and appurtenances thereunto belonging."  Now deeds are far from being my area of expertise, but my understanding is that "privileges and appurtenances" is language that is used to accompany the transfer of physical property.  Courts have ruled that a written transfer of copyright does not need to use the word copyright if the intention of the parties is clear, but it does not seem to me to be at all clear that copyright transfer was intended.

Copyright could also have been transferred in accordance with the "Pushman Perogative."  The Pushman decision suggested that the physical transfer of the only copy of an unpublished work of art (and some would say manuscripts as well) also transferred copyright.  In theory, it could apply to music (and I believe I remember reading that normal industry practice assumed that when master recordings were physically transferred, copyright accompanied the recordings).

So the key question here is whether in transferring physical property, did McGraw-Edison also transfer the copyright?  Again, I don't see how one can conclude this.  One of the key components of the Pushman decision was that the work of art (or the manuscript) was unique.  The description on the Edison web site indicates that McGraw-Edison transferred published copies of the recordings.  Later the NPS did get 9,700 disc master molds from the Henry Ford Museum.  It might be possible to argue that McGraw-Edison transferred copyright in those masters to the Henry Ford Museum when it transferred title, and copyright was subsequently transferred to NPS with the discs.  But unless the 10,000 cylinders that the NPS got from McGraw-Edison were master recordings, it would be hard to argue that their physical transfer to NPS also transferred copyright.  And even if copyright was transferred with the physical recordings, it would not place the items in the public domain.  Rather the government would now own the copyright in the recordings (since the government is allowed to own copyright created by non-government employees).

Of course, this whole issue is likely to be moot.  McGraw-Edison never appears to have argued that it had a common-law copyright in the recordings.  The company has since been bought by Cooper Industries, and I bet that Cooper has no idea that it may own the copyright in the recordings.  The chance that Cooper would sue for common-law copyright infringement seems remote.  And as June Besek has found out in her study for CLIR, the exact parameters of common-law copyright are also hard to fathom, so Cooper may not have a case for infringement.

So the assertion that the Edison recordings are in the public domain would appear to mistaken. The recordings are likely still protected by copyright - and the copyright status of the recordings doesn't seem to matter.

The lesson in all this is that we should not limit ourselves to digitizing only when things are clearly in the public domain.  When UCSB, the Edison Site, the Library of Congress, and even commercial companies like Archeophone Records (which recently released a CD of indecent cylinder recordings from the 1890s)  make old cylinder recordings available for listening or purchase, they may be in technical violation of copyright law.  But they have not been sued, and the risk that they will be sued seem to be extremely low.  All digitization involves a risk assessment - and in making this culturally important material widely available, these institutions have made the right choice.

[Corrections: on 2 July 2008, I changed the title of this blog entry from "wax cylinder recordings" to "Edison phonograph recordings."  A commentator correctly noted that many different companies made wax cylinder recordings.  This post is only about Edison recordings.  And Edison made more than just wax cylinders, but also made cylinders of celluoid ("Blue Amberol cylinders") and disc records made of condensite ("Diamond Discs").  I have been told that given the fragility of wax cylinders and the durability of Blue Amberols and Diamond Discs, most Edison records that survive today are not wax cylinders.]

Free the Founding Fathers!

Last February, a Senate hearing highlighted the sorry state of the Founding Fathers projects. While no one questioned the extremely high scholarly quality of the published volumes of papers that have been produced to date, the hearing noted the glacial production pace, high cost, and limited access to the finished products (which are expensive and bought by few libraries). The obvious question was whether technology could address the problem, and Congress ordered the Archivist of the US to report on the matter.

NARA’s report, “The Founders Online: Open Access to the Papers of the America’s Founding Era,” was sent to Congress in April, but it has received little notice or discussion. This is unfortunate because it is an important work on an important issue. There is much to admire in the report, but overall it demonstrates a fundamental failure to understand what open access means or how technology can make scholarship more productive. It seems more interested in protecting existing partnerships and editorial practices than in breaking new ground and fostering public access. Let’s hope that Congress recognizes how unsound the recommended approach is and pushes NARA to do more.

Detailed comments follow.

Libel Suit over Digitized Article Dismissed

From American Libraries June 13: "A federal judge has dismissed a $1-million lawsuit filed by a Cornell University alumnus who claimed that the school libeled him in a 1983 Cornell Chronicle article reporting that he had been charged with third-degree burglary when he was a student. Back issues of the Chronicle, a newspaper published by the university’s press office, are being digitized by the campus library."

Minow take: This is an important issue for all libraries who are doing digitization projects, especially digitizing old newspapers.  Good decision, though I notice the plaintiff has filed for an appeal.  Libel claim - the court looked at the article and found that although perhaps poorly written, the "gist" of the article was true. Disclosure of private facts claim was dismissed since the item was newsworthy. Almost anything today is newsworthy, so it would very tough to succeed in such a claim.