Authors suing libraries. Part One—Just who is being tacky?

Recently, I retweeted a link to an article about a number of authors and writers’ organisations who were suing a group of US libraries for copyright infringement. A discussion ensued with a Twitterer about whether this act made writers look bad.

My initial response was that I thought it made libraries look bad to be infringing copyright. But as the (very civilised) discussion unfolded I realised I didn’t know enough about what these libraries, under the umbrella name of the Hathi Trust, were trying to achieve and why they were being sued.

I figure if I’m going to argue robustly for or against a thing, I should at least understand it. So I started researching.

The first thing I learned was that I’d managed to conflate the issue of the Hathi Trust with the issue of Google Books, whose agreement with authors’ groups about how to manage its approach to digitising every book ever has come a cropper in the US Supreme Court. They are two different things, although linked.

Here is my attempt to unravel it all in plain English and offer my opinion as I go.

Google Books

It started when Google decided it wanted to scan every single book ever, including ones that were still under copyright to the original authors. The motive may have been noble—to preserve the world’s writing and make it accessible to everyone—but there was an undeniable commercial aspect, to sell books.

Google Books’ own FAQ says the following:

Are there any benefits for the general public?
Yes. If the Amended Settlement is approved, United States users will be able to search, preview and buy millions of Out-of-Print books that cannot be found in most bookstores and libraries. In addition, each public library building will have a terminal at which users can search for, read and, if the library is able, print out pages from Books in the Google database.

It does sound good in principle, but it’s important to remember that Out of Print is not the same as Out of Copyright, and with the opportunities offered by digital publishing, many rights holders may soon be making out of print books available digitally themselves or through digital publishers without the assistance of Google Books.

However, even those who are not planning to self-reprint digitally have moral and legal rights to what happens to their work, even their out of print work.

To break that down into the personal: the Google Books approach means that Google might scan a digital version of one of my out of print books (like Witch Honour, which was published in the US), without my permission, and then make that available digitally to people who wanted it.

This is despite the fact that I could (and have now) made that book available digitally myself.

I would have had no say in the Google process, though I could (if I knew they’d done it) opt out of it later. Google Books expected to be able to sell copies and send me a cut (if they knew who or where I was) without allowing me to negotiate a price or any other aspect of publication.

Naturally, a whole bunch of people and organisations opposed this model, including non-US authors. The French government, for example, sued to protect the cultural and intellectual property of their citizens. Then they began their own project. More on that later.

Anyway, that idea was challenged in the courts by the Authors Guild (USA). A settlement was reached. The US writers groups were happy enough, but the court has knocked it back as inadequate. The judge felt that the settlement, even though agreed to by all parties, gave Google a monopoly and broke laws pertaining to copyright and anti-competetive behaviour.

At this point in time, no writers groups are suing Google Books, but the Authors Guild and Google Books will have to review their agreement and try it at the courts again.

The Hathi Trust

As part of the earlier Google Books settlement, Google gave up the idea of digitising books they had labelled as ‘orphans’.

‘Orphaned’ books are still subject to copyright law, but Google could not find the official copyright holders. Not being located did not mean the copyright holders were not still out there and entitled to their copyright, of course: only that Google hadn’t found them.

This is where the Hathi Trust steps into the story. This group of five US university libraries recently decided to publish those orphaned works, having obtained the relevant digitised files from Google. This means the Hathi Trust could be giving away copies of books, without the writers and copyright holders getting payment they are entitled to, and possibly interfering with actual contracts and agreements currently under negotiation for still-living authors to release e-books.

Overseas writers were particularly horrified by this. How, for example, was a Japanese or French or Eritrean writer to know their book had been scanned, let alone considered orphaned, in order to assert their copyright?

As a result, The Hathi Trust are being sued by several writers and writers’ organisations, including the Australian Society of Authors.

It turns out that often, with only a little bit of effort, many copyright holders of those ‘orphaned’ books can be found quite easily. The ASA and other groups have been finding the parents of these orphans on a fairly regular basis in the last few weeks.

Interestingly, since the I first read about the issue, the Hathi Trust has inched away from elements of it.

Do writers have a right to be paid for their work?

Amazingly, writers are now having to fight in court for their rights to their intellectual property. And they are being called the bad guys for doing so!

To be very clear here: I make my living as a writer and editor. Most of that work is in the corporate sphere, but a growing part of my living is as a writer of books. My intellectual property is how I make my living. If someone’s going to try and take my work and my words away from me, without my permission or a negotiated contract of how much I am to be paid for my work, I’m going to be a bit miffed – and less able to pay my bills.

For writers (and publishers), one of the huge concerns is that if this initiative goes ahead without a challenge, the law is paving a path to a destination where writers may not be entitled to royalties. A precedent like that could also affect the intellectual property rights of academics, musicians, software designers and other creative jobs.

Copyright is not the paper and ink

Perhaps many people see digitised information as something that should be free, because so much information on the net is free. It is as though my copyright only exists on paper versions of my work.

My copyright is in the words and the order in which they appear, not in the paper and ink. They start life in digital form on my computer, and go through several transmutations in paper and in digital form until published as a paperback or an e-book. No matter what form it’s in, though, it remains my book.

Do people have problems with the intangible nature of intellectual property? If I was a carpenter who made tables and carved beautiful designs in them, people could see the individual item and see that I had made it with my hands. Nobody would think it was okay to just take it away to put in a museum then sell copies of it and give me a tithe of the proceeds, never giving me a say in the process.

But because my words are intangible, and may appear on paper or a screen or in someone saying them aloud, does this mean my right to say those sentences are mine—and to be paid for them—doesn’t count? If you make a thing with your brain and a keyboard rather than your hands, don’t you still have a say in your work?

But isn’t preserving our cultural heritage a good thing?

Of course the preservation of every nation’s literary and cultural history is important, but that does not mean the Hathi Trust approach is appropriate.

Even with the purest intentions, libraries are better off asking authors for their permission and collaboration. This is exactly what the French Government has done with its Gallica project. Alerted to the need, and the dangers of not meeting that need, to create digital archives, the French are working in collaboration with authors, illustrators and publishers to create a proper, protected repository of texts.

Another issue, which I haven’t yet seen discussed, is whether digital archives will actually last the intended distance. Papyrus has lasted thousands of years; good quality paper hundreds. Paper does deteriorate and a more durable form of record-keeping is needed, but it’s not clear to me that digitised data will meet that need in the long term.

What we currently know about digital data is that the tech keeps changing, that data corrupts and that digital data is vulnerable to magnetic fields. The last time I spoke to an archivist about this issue, some years ago, there were concerns about the future of such a relatively young form of retaining texts and images. Even if advances have been made, we haven’t had a thousand years yet to see how well the archives last. All of this may end up wasted effort.

Writers are interested in the future too. It would just be nice if our right to earn a living from our work wasn’t seen as some kind of vulgar grab for money.

* * *

Come back next time for my interview with Sophie Masson of the Australian Society of Authors about the Hathi Trust, Google Books, Project Gutenberg, the Gallica archiving project and whether patent law is confusing the issue.

Further reading:

See all the parts of this blog series:

  • Hi there, i read your blog from time to time and
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  • Pingback: Authors Suing Libraries. Part Three—The rest of the interview with Sophie Masson « Mortal words

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  • Err, there are in fact provisions for copying of copyrighted works under US law without the owners permission, and the suit, as I understand, is trying to show that these have not been properly followed, but it is not yet clear that the trust has acted illegally.

    I agree that things could have been handled better and that the process was flawed, but I would like to ask when you first heard about the Orphan Works project that brought this clash to a head?

    I know that the project was announced in May and that the presumed “orphan” works were on display since July so wondered if ASA members were warned thier works may be being infringed. I hadn’t heard anything about it on the net before the lawsuit was announced and wondered if the ASA was keeping it’s members informed. I would have expected it at least to let member know where to go to find if their work had been infringed. Do you know if this was done?

    • Personally, I found out by following a tweet. I don’t always read my ASA emails, though it seems I should!

      When they notified members doesn’t seem relevant to the issue under discussion, though. It advised members that it was undertaking legal action, but I believe it does not need to seek permission to do so. While it keeps members abreast of actions it is undertaking, the ASA is not obliged to do the Trust’s work for it and individually notify members of the suspected breach.

      The US law may be as you say, but the people and organisations suing the Hathi Trust are non-US writers and organisations and may test whether those provisions are lawful in relation to authors outside the USA..

      In the end the court case will determine if a law has been broken. The writers and organisations think so, the Trust obviously thinks not. When the court makes its decision, I guess everyone will have to contemplate what that means for rights holders and what to do next.

      • You are right, asking about what steps the ASA took isn’t germaine to the question of possible copyright infringement, I was just curious as to what action they took to keep members aware of what was going on. Pure steaky-beakness on my part.

  • Unfortunately there are some misunderstanding about the detail of what was intended by the release of Hathi Trust Orphan Works. To me the whole issue becomes a lot less scary once it is made clear what guidelines the Trust was putting in place for the collection’s use.

    Under the Hathi Trust digitisaton scheme there are quite clear boundries in place on who can see what sort of works. There are three major catogories of works available.

    1: Public Domain titles can be accessed by anyone who is listed as a partner within the scheme(predominantly university libraries)
    2: Works clearly still under Copyright(including all titles covered by US copyright law that were printed on or after 1964) will only have electronic versions if the owner gives express permission
    3: Possible Orphan Works with editions printed before 1964(*).

    There is a Hathi Trust policy that access to the (so called) Orphan Works catogory was:
    1: Limited to the owners of collections that already had a physical copy of the work on their shelves
    2: The number of “electronic copies” that can be accessed by partners at any one time is limited to the number that are(or were) owned by the institution.
    3: No access to the Hathi Trust archive is granted outside the grounds of partner institutions

    Hathi Trust said a reason why these guidelines were put in place was to cover partners as best that could be done by the Fair Use provisions within US Copyright law.

    (*)The reason why the 1964 date is important is any book who’s copyright dates from then or later is covered by an act of Congress which grants an automatic extension to copyright so works from 1964-1977 didn’t need a renewal of copyright to be covered by the then Life+50(now Life+70). Works printed before 1964 were covered by the old US copyright regime that gave authors only 28 years + 28 additional years extension that would be granted only on request to the copyright board. The significicance of this is that works printed before 1964 could well be Public Domain unless it can be shown that a copyright extension was granted.

    • I think the lawsuit is much less about the Trust’s intended use of the copyrighted material than it is about the fact the Trust had no right to digitise the material in the first place, let alone distribute it (even to a limited group). The fact that the ‘parents’ of so many ‘orphaned’ works have been found also shows that the Trust’s processes in identifying the rights holders was flawed. Such sloppiness is a bit of a concern in an academic institution and the Trust itself has responded to that issue.

      Another issue is that, if writers did not respond to this particular breach of their copyright (no matter how limited the availability of the material or reasonable the cause) sets up a legal precedent. If no objection is lodged on this occasion, it may be used as a precedent to justify future breaches.

      For me, the Trust’s good intentions come undone if they begin by breaching copyright law. Permission must be sought of writers BEFORE works are digitised or copied. Writers should not have to discover that their rights have been breached and give or withhold permission after the fact.

      On the whole, I don’t think it’s a bad thing that this issue has arisen. It raises questions that need to be discussed and it will heighten understanding of creators’ rights.

      The Hathi Trust may have had the best intentions in the world, but that doesn’t mean their approach wasn’t flawed.

      I simply also do not think that writers are wrong to use the law to protect their rights. Just as anyone who might see their work/property taken without permission is entitled to do.

  • A most informative article which I recommended many writers to read. Thanks.

  • Thank you for such a comprehensive wrap up. I totally agree with you on intellectual property. I am a writer of children’s books but also work in an industry (civil celebrancy) where there is so much intellectual property theft – you would not believe it. I’ve tried to raise this before within the CC industry only to be shouted down by those who condone the practice of plagiarism and IP theft. People see stuff on the ‘net and claim it as their own. They have no understanding of the rights of creators.

    • It’s a matter of ongoing education, I guess, and perhaps asking if those people would mind if you just went into their house and helped yourself to their things. Particularly their meals, their plants in the front garden or anything else they’ve made themselves. :/ Certainly, as writers (or other owners of intellectual property) we need to value what we do and explain to people why copyright infringement is a problem.