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Google book search ruling raises copyright questions

In this file photo, a reader views a scan of a rare, centuries-old Bible. Hundreds of librarians helped Google Inc.’s Book Search create digital versions of books to make them readily available online. This week a district court judge rejected an agreement that would have granted Google significant rights to exploit entire books, without permission of the copyright owners. AP Images

This week, Judge Denny Chin, of the U.S. District Court, Southern District of New York,  rejected a proposed class action settlement agreement among Internet search engine giant Google, the Authors Guild and a coalition of publishers.

Google reached a deal with the Authors Guild and publishers in 2008 in which it agreed to pay copyright owners for the right to scan and digitize books. However, the issue of the use of “orphaned works,” in which Google would benefit from digitizing work from copyright owners of out of print books it couldn’t find, led Judge Chin to reject the deal.

Assistant Professor Jill Hurst-Wahl, of the Syracuse University School of Information Studies, defined “orphaned works” as a situation in which the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. 

Judge Chin said the agreement “would grant Google significant rights to exploit entire books, without permission of the copyright owners.” The court, along with numerous interested parties, recognized the value orphaned book material would provide to libraries, schools and researchers, but Judge Chin said it gave Google “a de facto monopoly over unclaimed works,” and is an ownership issue Congress needs to decide, not private party litigants.

On the Authors Guild website, Guild President Scott Turow said: “[R]egardless of the outcome of our discussions with publishers and Google, opening up far greater access to out of print books through new technologies that create new markets is an idea whose time has come. There has to be a way to make this happen.”

Google managing counsel, Hilary Ware, echoed that sentiment.

“Like many others, we believe this agreement has the potential to open up access to millions of books that are currently hard to find,” Ware said in a statement.

“It’s sad because in some cases it might really be helpful,” said Sally Snow, assistant director of the Monroe County Library System.

Snow said Monroe County would like to digitize orphaned works but can’t since they do not have the staff to pursue due diligence. The same is true for the University of Rochester, according to Susan Gibbons, vice provost and Andrew H & Janet Dayton Neilly dean of the River Campus Libraries.

“The researcher in me would love to have access [to orphaned works],” Gibbons said. “What Google could have provided would have been fantastic, but the librarian in me worries [as the court did] what they would have charged for access without any competition.”

Gibbons said it is no wonder there is a large amount of orphaned work since there is no centralized database to see who owns the copyright. While the university can digitize Abraham Lincoln’s letters, for example, it can’t use anything published after 1923, when copyright law were enacted.

According to Gibbons, the amount of orphaned work is substantial since ownership rights used to revert back to the author when books went out of print. If the author is dead, the copyright can’t easily be found. Even today, when publishers go out of business or consolidate, the copyright ownership can be difficult to determine.

“I think it has to be resolved,” said Dr. Howard Kirschenbaum, local author and Authors Guild member. “It seems reasonable to me that if everyone has made a sincere attempt to find the copyright owner and they can’t be located, it would be in the public interest to digitize it.”