Tag Archives: libraries

Authors Suing Libraries. Part Three—The rest of the interview with Sophie Masson

This post follows on from Parts One and Two of Authors Suing Libraries.

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. The second post was part one of my interview with Sophie Masson, writer and Chair of the Australian Society of Authors, to find out more about the relevant issues.

This is Part Three of the series, the rest of the interview with Sophie Masson. I hope you find it useful

* *

Narrelle: I see that already there are cases of books labelled as ‘orphaned’ that are not orphaned at all, and the writers are in fact still alive and fairly easy to find. What are the real, practical consequences for the authors of ‘orphaned’ books if they and their books are not reunited in the relevant database?

Sophie Masson: It is rare indeed that there are real ‘orphan works’. Books are either in copyright or they are not. Clearly, when authors are alive, they own the copyright, unless they have assigned the copyright to someone else, ie by way of contract or agreement, as a gift or to a publisher or institution as part of their contract.

In Australia, works come into the public domain 70 years after an author’s death. Thus an author’s estate (whoever are the author’s beneficiaries of the works) own the copyright after the author’s death. That can be family, friends, organisations, whoever you’ve left your copyright to. So even when authors have died, people wishing to do such things as quote from, extract or digitise their works must seek permission from the rights holders. This can be paid or provided free, with acknowledgement, but it must still be requested.

Of course it could be said that sometimes it’s very hard to track down who owns the rights in a book published long ago. But it is still incumbent on whoever wants to use it to identify the rights holder. Out of print doesn’t mean out of copyright. But where an author is alive, easily identified and is clearly the owner of the copyright, there is simply no excuse that can be made.

What it means for authors if works are abducted in the way those in the Hathi Trust case were, is that not only are you not remunerated for the use of your work, but you have no control over how it is presented. You will get no lending rights if these apply, no reproduction rights payments (CAL), and future legal digitisation of that work will be in jeopardy. And if respectable bodies like university libraries engage in this kind of behaviour, and are allowed to get away with it, what hope is there for any of us to protect our rights as creators?

* *

Narrelle: Many people think a digital repository of all books is a good and noble thing. Is there a model of doing this which the ASA would consider supporting? (One that does not have a commercial aspect, for example? One that was run by the Australian National Library or the Library of Congress in the US?)

Sophie Masson: The ASA is not at all against digitisation per se or a digital respository of books per se, properly constituted. It would be worth investigating whether a national scheme could be devised, perhaps co-ordinated through our own National Library, but with proper consultation with creators, publishers, libraries and readers.

This would also work to ensure that, just as in the ‘physical library’, authors would be eligible for PLR and ELR on the books in such digital libraries. This is something that would not occur if the standard digital library was based outside Australia, incidentally, as would have been the case with both Google and Hathi Trust.

Readers would not be disadvantaged by such a scheme. Quite the opposite, because it would ensure equity of access throughout the country. Libraries—which have always worked in a happy partnership with creators and publishers—would have a unified system suitable for Australian conditions. And of course it could also be part of an international network of such properly-constituted digital libraries.

What the ASA is dead against is the attempt by some parties to attempt to destroy or dilute copyright. Authors and illustrators depend on copyright for our living. Without it, we would have no royalties, no lending rights, no copying payments, and no way of earning subsidiary rights. Frankly we could not earn a living from our work. And we could not protect its artistic integrity either.

Besides, intellectual property rights are the same as any other property rights. No-one can simply walk into your house and take it over, unless you live in a dictatorship. No-one should be allowed to simply help themselves to your books, either. Whether that is for ‘commercial’ purposes, as was the case for Google, or supposedly for high-flown ‘noble’ purposes of access, as was the case with Hathi Trust, doesn’t matter. Our rights as creators should be respected, in the world of paper books and in the world of digital books. As I said before, the format makes no difference whatsoever to that. And why on earth should it?

There’s this iconoclastic Internet-based movement which claims that ‘copyright is theft’, rather like the old slogan of ‘property is theft’. Authors and publishers have even been characterized as villains for defending rights that these people think shouldn’t exist (though of course if it was a question of their own rights it would be a different story!)

Much of this is simply to do with the idea that some people think everything digital ought to be free, because they associate it with the Internet, where things have very often been free. But some of it may also be due to a simple misunderstanding of copyright of books. I think some people may confuse it with a ‘patent’, whereby you can register an idea as belonging to you and no-one is allowed to even try that idea for at least innovation patent 8 years, standard patent 20 years, unless of course you sell your patent in the meantime.

Patents protect inventors from being ripped off, but they can also lead to situations whereby a company may buy a patent from an inventor and sit on an idea without doing anything about it, purely to stop others developing that particular idea, or to sell it on the highest bidder. This has been claimed by some people to slow progress on worthwhile ideas or to make a grab for things that aren’t actually anyone’s brainchild (like a wild plant occurring in nature, for instance.)

But copyright such as occurs with literary works isn’t about squatting on an idea; it’s about protecting the integrity of a creative work. To use a personal example, I have no copyright on the idea of the manhunt for Ned Kelly, and I couldn’t and wouldn’t want to stop anyone else who wanted to write a novel set against that background. Where I do have copyright is in my actual novel, The Hunt for Ned Kelly, and it is protected by law from piracy, plagiarism and any other unauthorised use.

I mentioned France earlier in regards to these issues. Personally, I think it offers a good model for possible solutions to these issues. The French have always strongly defended their national culture, and literature is a very important part of that. What is less well known is how much they’ve been anticipating these digital literary issues and working collaboratively with the book industry on solutions for present and future problems.

The successful Google case in France resulted in the Government expanding its already evolving national digitisation program, Gallica, which is run within the Bibliotheque Nationale de France (National Library–http://gallica.bnf.fr/ )

The French Ministry of Culture has been working extensively with authors, publishers, and libraries to make this national scheme into a digital repository of works. They are also working on solutions to the problem of the so-called ‘orphan works’ by proper research and documentation and by dealing with what they call ‘the grey zone’—that is, books published before 1995 where rights holders may or may not be known but where digital rights clauses were not included in contracts.

Digital rights for these books will be established by the Government and Gallica will digitise them—with the permission of authors. Commercial exploitation can remain with the writers, with the publishers if they wish, or instead go to Gallica.

This is potentially a very big and important intervention as it could set the model for e-book commercialisation in France and set national formatting standards, as well as lay the ground for a genuinely collaborative and useful digital repository of books.


So there we are. I hope between Part one’s summary and opinions and Sophie Masson’s detailed responses to my questions, you are no longer as confused as I used to be about Google Books, the Hathi Trust and who, exactly, looks bad when authors feel they have to sue libraries in order to protect their ability to make a living.

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.

* *

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.