(Posted by Peter Hirtle. Continues D is for Digitize: Day 2 Afternoon.)
O is for Orphan
Much of the criticism of GBS surrounds the issue of orphan works, but there is much confusion (perhaps some of which is deliberate) over what is an orphan work and how GBS would impact those works. Michelle Woods from the Copyright Office presented an overview of its orphan work study and subsequent legislation. Harry Lewis reminded everyone that books spend most of their life in the public domain where they can be freely used. Furthermore, authors want to be read, so the desire for wide dissemination, rather than profit, is the underlying motive for most books. Implicit in his remarks was a concern that GBS might hamper access to our cultural heritage rather than fostering it.
For me, the highlight of this session was Jule Sigall’s talk. Sigall was the lead author of the Copyright Office’s orphan works report. While the Copyright Office may exist to protect the interests of rights holders, in its orphan works study it broke new ground in trying to foster public access to otherwise unusable works. I take Sigall’s opinions seriously, therefore.
His criticism of GBS was pretty damning. It will, he stated, lead to dystopia. Proponents of the settlement, he argued, believe that it will help copyright move to a more rational system that include formalities such as registries that will identify rights holders. If authors don’t make themselves known, you can then use their work.
Sigall believes GBS establishes a system that is the opposite, for the following reasons:
- Google is the only one under the settlement who gets the benefit to use orphan works. It is the settlement, not the BRR, that gives them the right to use orphan works. BRR could license some of the collection, but not all.
- Similarly, the BRR won’t be able to license the use of orphan works.
- The 1976 Copyright Act may actually authorize more uses than the GBS allows. Sigall suggested we compare the position of the Author’s Guild criticism of orphan works with its implementation of the settlement.
- GBS removes Google’s up-front obligations to locate and secure permission from copyright owners, but then limits what down-stream uses Google can make of the work. (Aside: This would appear to be a different reading of the settlement from many of its critics, who worry that it gives Google a free hand to do whatever it wants with unclaimed books.) Orphan works legislation would have required Google to do more work up-front, but then have a much freer had to use works if a rights owner can’t be found.
- Sigall is one of those who worries about whether Google will protect privacy.
A is for Antitrust
If I know little about the class action issues discussed in the conference’s first panel, I know even less about the antitrust issues discussed in this panel. Hence I found all four panelists to be equally convincing – even though they came down on opposite sides of the antitrust issue.
Here are a few of the highlights that I noted:
Matthew Schruers did not see competition issues in GBS. First, Google is developing an open system using non-proprietary file formats (ePubs, PDF) and open APIs that is accessible to any browser. Second, the consensus is that the public is better off with the service than without it. (Critics, on the other hand, are saying that “no service is better than this service.”) Lastly, he dismissed the notion that Google’s exclusive license on an unknown quantity of orphan works gives them a substantial advantage over competitors. An exclusive license to use books that no one wants, he suggested, does not give you much of advantage over others.” (Of course, there are times when a researcher wants a particular title or edition and no substitute will work as well.
Sherwin Siy argued that Google is likely to be a working monopoly because it will be the only entity able to sell orphan works. Precisely because one book cannot be substituted for another, GBS must fail on anti-trust grounds.
Einer Elhauge gave a very accessible version of his work on anti-trust issues in GBS. He encouraged us to use the “but-for” baseline – does the settlement lower consumer welfare from what it would be without a settlement? If you benefit consumers, but could have benefited them more, that is not antitrust. Furthermore, GBS, while removing Google’s entry barriers to distributing comprehensive set of digital books, does nothing to raise barriers to others entering the arena. First movers, he suggests, should get an advantage.
Gary L. Reback disagreed with almost every Elhauge said.
(Continued by D is for Digitize: Summing up)
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