Sunday, January 21, 2007

Intellectual Property and the Internet

Google and Microsoft are scanning books.

Himalayas of information are still waiting to be conquered. And the highest peaks of all are the great libraries of the world, the repositories of the 100m or more books that have been produced since Johann Gutenberg invented movable type in the 15th century.

In December 2004, Google announced its assault on these peaks. It had made a deal with five libraries — with the NYPL and at the universities of Stanford, Harvard, Michigan and Oxford — to scan their stocks, making their contents available online via Google Book Search ( Ultimately, it is thought, some 30m volumes will be involved. Microsoft, meanwhile, has made a deal with the British Library to scan 100,000 books — 25m pages — this year alone. Google has now scanned 1m books.

The first thing to be said is that Google Book Search, though still in its “beta” or unfinalised form, is an astonishing mechanism. Putting my own name in came up with 626 references and gave me immediate access to passages containing my name in books, most of which were quite unknown to me. Moreover, clicking on one of these references brings up an image of the actual page in question.

But the second thing to be said is that I could read whole passages of my books of which I own the copyright. At once a huge intellectual property issue looms. The Americans are ploughing ahead with this, scanning in material both in and out of copyright. The British — at Oxford’s Bodleian Library and the British Library — are being more cautious, allowing only the scanning of out-of-copyright books. This may, of course, mean nothing, since the big American libraries will, like the Bodleian and the British Library, contain every book published in English, so they will all ultimately be out there on the net.

American publishers are not happy. Before its 2004 announcement, Google had been doing deals with individual publishers to scan their books. But digitising the libraries would seem to render these deals defunct. Furthermore, since Google is acquiring copyright material at no cost, it seems to be treating books quite differently from all other media. It is prepared to pay for video and music, but not, apparently, for books. The Google defence is that their Book Search system is covered by the legal concept of “fair dealing”. No more than 20% of a copyright book will be available, the search is designed to show just relevant passages, and it will provide links to sites where the book can be bought.

Unimpressed, the Authors Guild, supported by the Association of American Publishers, has started a class action suit against Google. A deal may yet be done, but neither side sounds in a compromising mood, and it looks likely that this will go all the way to the Supreme Court, whose ruling on this case may prove momentous.

I’d be interested in what the lawyers think of this. My personal reaction is that I’m excited about getting all the books since Gutenberg on the internet. For the first time in history, everyone with a computer will have access to all knowledge. Anyone with initiative and ability will be able to pursue scholarly studies.

At the same time, if an author does not want his book scanned, Google and Microsoft should respect his decision. Perhaps in the future books will be published for a short period, maybe five or 10 years, then they will go online. Surely having a book in Google’s database is preferable to it going out of print and never being heard of again. And they should set it up so that readers pay Google something to read anything more than a short excerpt. That way an author’s book is available to those who want it and the author still makes some money from his intellectual property.

At some point a book should go into public domain, but when?

(HT: Polipundit)


Jennifer Snow said...

Deciding when intellectual property in general and books in particular should cease to exist qua property is a really tough question that may be impossible to give more than an approximate answer. However, I have a thought.

The book should remain the author's property for as long as the author is alive and can benefit from their own work. Then, considering that people can die unexpectedly and one of the things that people use money for is to provide for their offspring, have the copyright last 20 years, enough time for even very young children to get on their feet and support themselves.

Dismuke said...

One of the big inadequacies of our present copyright laws is that they make no provision for abandoned works.

In the past there was a requirement that all copyright had to be renewed after 28 years. At that time, the vast majority of items under copyright were NOT renewed and the items fell back into the public domain.

There were a number of reasons why a copyrights were not renewed. Sometimes the commercial usefulness of the work was dated and it was no longer valued. In some cases, the owners had forgotten about the work or had died with their heirs not having an interest in it or even being aware that it existed.

Books, of course, are not the only items subject to copyright. So are photographs, musical compositions, movies, and, in recent decades, sound recordings.

The difficulty with the laws today is there frequently exists no way for a person to determine whether an older and more obscure item still has an owner that has an active interest in maintaining his property rights in it or whether, for all intents and purposes, the item has been abandoned. This is especially true now that it is not necessary to register an item in order to be afforded at least some measure of copyright protection.

Suppose someone runs across a copy of an old photograph or an article from a small, long defunct newsletter and, seeing value in the work, would like to republish it. Sometimes it can be very difficult, if not impossible, to track down the original owners or their heirs in order to ask for the necessary permission. Chances are pretty good that, if the work has not seen the light of day in many years and the original copyright owners are obscure, it most likely has been abandoned and nobody is going to be harmed or bothered by the republication. But there always exists the possibility that some heir might suddenly turn up after it has been republished and start making legal threats. For that reason, it is understandable why serious publishers would be hesitant to republish a great many works which, in fact, have been abandoned.

The solution is to bring back the mandatory renewal on copyrights. Basically, all that would need to happen is, after a certain period of time...20 years, 40 years, whatever is deemed appropriate...owners of copyrights would simply need to file with the Library of Congress their desire to keep their copyrights in full effect for the remaining duration of their term. All they would have to do is send in the necessary paperwork plus a nominal filing fee to pay for the cost of processing the request.

Something like that would very quickly put an end to the question of whether an older work has, in fact, been abandoned.

Such legal clarity is necessary if rediscovered but abandoned works are to have a fighting chance at being preserved and exposed to the audiences they deserve. History is full of examples of artists, writers and musicians who were brilliant but commercially unsuccessful in their day and whose works eventually became more appreciated many years later. If a work has been effectively abandoned and one must wait the full duration of the standard copyright term before one can bring it back to life and to the public's attention - well, it is very possible that the work may no longer be still around and that the moment where its reintroduction might have been culturally viable will have long since passed.

This is kind of a hot-button issue for me because I personally cannot stand today's popular culture, especially the stuff that passes for "music" these days. The bulk of my pop-culture related entertainment comes from pre 1935 recordings and, to a lesser degree, pre 1940 movies and radio programs. A great many of the films of the past have disappeared forever simply because they went through a period where they were no longer fashionable or commercially viable in a world that lacked such distribution channels as VHS and DVD. The legal status of early 1900s recordings in this country is a total mess. Most CD labels which reissue vintage material are "labors of love" and not significantly viable commercial enterprises. There are a great many vintage movies from the late 1920s and early 1930s where, if one has a desire to see the movie, one's only recourse is to try and obtain what is, for all intents and purposes, a bootleg copy from various Internet purveyors of such things who make them available, again, as more of a "labor of love" than anything else. I suspect that, in some cases, the old movies might actually still be under copyright protection but the owners fail to make them available for commercial distribution because the returns would be iffy or marginal at best. And, yet, in many instances and respects, these forgotten and unappreciated works from the past are, in my view, vastly superior to the kind of stuff that is being churned out for consumption today. For me, stuff from that era is like looking at artifacts from some wonderful but lost civilization - which, in many respects, is the case. It would be a shame if such works are lost forever - and, thanks to digital technology, I think the chances of that happening have been reduced.

My bottom line point, however, is that the long term survival and preservation of works which are not commercially viable is already a rather iffy proposition and frequently requires "labor of love" type project that generate minimal, if any, financial returns. The inability of our current copyright laws to address the isssue of intellectual property that has been, in effect, abandoned will only make it more difficult for such "labor of love" projects to be undertaken by future generations.

Myrhaf said...

Thanks for both of your comments. Intellectual property and copyright is a complicated legal problem.

Jennifer Snow said...

That's really cool, Dismuke, in fact I was thinking about that myself. I mean, a lot of books, articles, etc. go out of print very quickly and are never extremely commercially viable in the first place.