Authors Suing Libraries. Part Two: An Interview with Sophie Masson

This post follows on from Part One of Authors Suing Libraries: Just Who is Being Tacky? In the first blog I gave a precis and some opinions about Google Books, the Hathi Trust and whether writers are tacky for suing libraries.

I wrote to Sophie Masson, writer and Chair of the Australian Society of Authors, about the copyright issues relating to these projects and a few other salient points. The interview got very long, but it’s all too useful and informative to edit down, so I will present Sophie’s responses in two parts. Here is the first question. The remaining two questions will be addressed next post.

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Narrelle: I understand that Project Gutenberg was digitising out-of-copyright books to make them available for posterity and research. What is the difference between them and Google Books/Hathi Trust?

Sophie Masson: Project Gutenberg, as you say, is about digitising truly out of copyright books—books in the public domain, like classics, etc. No-one, least of all the ASA, has a problem with that.

The big difference with the others is that Google Books, initially anyway, was going to digitise every book in the world, in or out of copyright, without reference to rights holders. That was halted in its tracks in the USA in 2005 when authors and publishers sued it for infringement of copyright.

Other countries also followed suit. In France, for instance, Google was separately and successfully sued for attempting to digitise works in a test case relating to books in the holdings of the Lyon public libraries. Google was forced to abandon its proposed digitisation of French books, and instead the French Government stepped up its national digitisation program, known as Gallica.

Google then switched to trying to put together a deal that basically focused only on English-language works, in which the default position would be that rights holders would have to ‘opt out’ of digitisation by Google, but would be renumerated for it, unlike before. Under that 2008 deal, Google agreed to pay a one-time fee of $125 million (all up) to settle with authors and publishers. Some $34 million-plus of this settlement was to go to the creation of a Book Rights Registry, while the remainder was to go to rightsholders—authors and publishers—whose books Google had already scanned without authorisation.

However, this deal was also struck down this year by Judge Denny Chin because it violated antitrust and copyright law—giving Google “a de facto monopoly over unclaimed works” (also known as ‘orphan works’, ie works whose rightsholders have not been identified or cannot apparently be tracked down). It thus cut out competition by other possible digital book repositories, including national ones. It also simply assumed that rightsholders agreed because they hadn’t opted out, even if they might never have heard of the scheme or met the deadline for ‘opting out’ that Google had imposed. So it was back to the negotiating table for Google, negotiations which continue today.

The Hathi Trust is a separate but related issue. Once again it is about the issue of so-called ‘orphan works.’ ‘Orphan works’ are a contested area and the Hathi Trust, which includes a group of five leading US universities (Indiana, California, Cornell, Wisconsin, Michigan) possibly attempted to exploit the vacuum left by Google by launching its own digital repository of such works.

Trouble was, the Hathi Trust actually identified as ‘orphans’, many works that are most certainly copyrighted; many by authors who are not only living but active, such as Fay Weldon, James Shapiro, and Angelo Loukakis, the ASA’s Executive Director. His 1980s novel, Vernacular Dreams, was copied without his permission and without any attempt to contact him. As he memorably said, this wasn’t a case of ‘orphaned books—it was a case of abducted books.’

How could the Hathi Trust have thought it could do this? With such blatant mistakes in their publication of wrongly called “orphan’ works, what attempt was made to contact copyright holders? What attempt was made to institute a proper process? Was it possibly a unilateral decision to dub as ‘orphan’ works which most certainly weren’t? I would very much like to see the evidence of the extent (if any) of Hathi Trust’s attempt to check the ownership and copyright status of the so-called Orphan works.

In blogs and articles, some people have said things like, ‘well, these books languished unread on the shelves, authors should be happy their works are being rescued from oblivion!’ It’s as though a digitised book is seen as somehow different to a physical book; but for heaven’s sake, whilst the format of the book is protected by law, usually to the publisher, the main purpose of copyright protection is to protect the content from unauthorized copying!

The Hathi Trust libraries would never have photocopied these works and stuck them on shelves without permission; so why on earth did they imagine they could do it in digital form? Whatever the motive behind it, it was extraordinary behaviour, which is why a lawsuit was brought against them by individual authors and organisational plaintiffs such as the Authors’ Guild (USA) and the Australian Society of Authors. And as soon as that happened, suddenly, miraculously, the Hathi Trust discovered that ‘mistakes had been made.’

People generally need to realise that there is a huge ‘gold rush’ going on in the area of e-books and digitised intellectual property. Commercial giants like Google, Amazon, Apple and Overdrive (the world’s biggest digital rights management and distribution of e-books to libraries) are, so to speak, pegging out and jumping claims for the mining of the rich goldfields of literature, from creative content to publishing to distribution and library supplies.

They have seen that a digitised future for books leads to immense commercial opportunities for companies canny enough to see the digital writing on the wall, and quick enough to seize control of vast slabs of literature before anyone else cottons on. All of us who love books, whether authors, readers, publishers or libraries, need to be aware of the dangers of the concentration into a few hands of the digital books industry. But apparently it’s not only commercial interests that we need to watch out for!

On the positive side, you could say that Google and the Hathi Trust have done us all a favour by bringing these issues out into the open. Maybe what will come out of all this is a workable system that will allow for modern conditions, and provide a fair deal for creators and good access to readers. And I might add that Australian university and other libraries understand our stance and fully support copyright law whilst also wanting better access for readers. So we have a good opportunity here to get together and work towards that.


Come back for the final part of the Authors Suing Libraries blogs, the rest of the interview with Sophie Masson, which will look more at the orphaned books issue and a model of preserving Australia’s literary heritage in digital format without compromising the rights of authors.