(by Peter Hirtle)
[UPDATE below]
On 10-11 March, the Copyright Office sponsored a roundtable on the problem of orphan works: works protected by copyright whose authors cannot be located. I didn't attend, but you can find summaries of the discussion here, here, and here. Written comments on the issue are due to the Copyright Office by 14 April.
One of the major topics under discussion was Extended Collective Licensing (ECL) and its possible application to the mass digitization of orphan works. This reminded me of the recent flurry of articles and posts about changes to the Norwegian National Library's use of an ECL. I wrote in 2011 about Norway's first experiment with a library-funded ECL and its potential as an alternative to the proposed amended Google Books settlement. On 28 August 2012 the Library signed a new agreement with Kopinor, the Norwegian organization that represents many authors and publishers. The change seemed to have gone unnoticed in the West, though, until Atlantic author Alexis Madrigal wrote a short piece in December, 2013 on how Norway planned to digitize and make available "all Norwegian books." A 16 January AFP article on the project was picked up and discussed in the Telegraph, and that sparked a flurry of other articles and blog postings. It may have been because the Telegraph article had the irresistible title, "Books go online for free in Norway." It also led to a lot of hand-wringing over why the US wasn't digitizing and making all of its books available for free.
What is new and what is the same since the 2010 agreement? To answer that question, one must actually read the new agreement, which is available in html or as a pdf.
The biggest similarity is in the use of the material. Users may still not download or print from a book in the system; it is for online reading only.
As for differences, there are several:
- The number of books in the project has increased dramatically. The pilot agreement was for 50,000 books with only one decade (1990-1999) of 20th century books included. The new agreement covers all books published in Norway (including translations from other languages) until 2001. The estimate is that this could be 250,000 books.
- The original agreement only allowed for one page to be viewed at a time. The new agreement allows the books to be presented in the format used at the National Library.
- Both agreements allow users in the Norwegian IP domain to access books, but the new agreement holds out the possibility that external researchers with distinct research projects could consult the corpus.
The most interesting change is in the pricing. The 2010 agreement required that the National Library pay annually NOK 0.56 (about 10 cents) for every page "made available" (not read). That price has dropped dramatically in the new agreement. The new fee was NOK 0.36 in 2013, and it drops to NOK 0.33 in 2015 and subsequent years. That is 6 to 5 cents in USD. Of course, given the dramatic increase in the number of volumes, the total amount being paid to Kopinor is considerable. There is no estimate of pages per volume in the new agreement, but if we use that from the 2010 contract (185 pages), the Norwegian national library will be paying over $2.3 million/year to allow people to access and read Norwegian books online.
Is this excessive? The answer might depend on how often the books are read. By comparison, the UK is distributing over $11 million to authors through its Public Lending Right, but that works out to only $0.10 per loan.
It is more interesting to think about how the Norwegian model would work in the US. Let's assume that we changed our laws so that one agency could represent both members and non-member authors and publishers. The Library of Congress then signed the same agreement as the National Library of Norway did. How much would it cost the government?
To answer that question, one needs to know how many books that are still protected by copyright were published in the US. Unfortunately, there is no easy way to compile the number of books protected by copyright from the Copyright Office's annual reports. We could use, however, Brian Lavoie and Lorcan Dempsey's estimate that there have been 12.5 million books published in the US since 1923. We can subtract 60% of the titles published between 1923-1964; the University of Michigan's Copyright Review Management System has found that roughly only 40% of copyright works were renewed and hence still protected by copyright. So let's say that there are 11 million titles in our pool of US works. If we use the same estimate of 185 pages per work and assume the $0.05/page royalty rate, it would cost a little over $100 million/year to provide online access to read (but not download or print) American works. (And note that this only considers royalty payments, and not the cost of digitizing and delivering books.)
Would Congress increase the Library's budget by almost 1/4 in order to provide this level of access? One plus is that the Norwegian approach is not limited to orphan works. All works are accessible under this plan unless authors expressly withdraw titles from the scheme. No money is spent on "diligent searches" to locate copyright owners. According to the head of the National Library in Norway, Moe Skarstein, "Instead of spending our money on trying to find the copyright holders, we prefer to give it to them."
There is something that seems unfair about having to pay to read a book that is an "orphan." Any revenue that work generates will not go to the copyright owners, since they are unknown. But according to the Copyright Clearance Center's annual report, it collected over $270 million in permission fees in 2013. Some of that would still have to be paid by users who wanted to print or download copies of items, but many other readers might be happy with simple online access. Thanks to the ECL, they would be able to eschew payment.
An extended collective license might be an acceptable solution to the orphan works problem - but only if all works, and not just orphans, were included.
UPDATE: I realized after posting this that I had not accounted for the difference in population size between Norway and the US. The US is 62.54 times larger than Norway; it would make sense that rights owners would want to increase the license to reflect the larger potential reading audience. That means the annual license fee for US books could be $6.254 billion. The Norwegian ECL is looking less and less like an option.
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