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.