Jan Constantine, General Counsel of the Authors Guild, is testifying before the House Judiciary Committee this afternoon on mass digitization of books and so-called orphan works. Those topics, of course, are at the heart of two Guild lawsuits, Authors Guild v. Google and Authors Guild v. HathiTrust.  An advance copy of Jan’s written testimony is available below.

Authors Guild House Judiciary Testimony (PDF)

Authors Guild House Judiciary Testimony (Text)

Here are three highlights:

Out of print books only

1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books.  Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.

Here are the key components:

A. Authors get paid for the uses, naturally.

B. Licenses would be non-compulsory.  Authors get to say no.

C. Licenses would cover out-of-print books only.  No disrupting commercial markets.

D. Display uses only.  No ebooks or print books.

E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.

Such agencies are already in place around the world, licensing limited photocopy uses of books. They all license orphan books as part of the package.

There are millions of out-of-print copyrighted books. Making these books available would have an enormous societal benefit and bring our nation’s great research libraries to computer screens at our smallest colleges and most remote rural libraries.

Guild says 1963 copyright hearing “eerily prescient” of Google’s book scanning project

2. A Copyright Office hearing on February 20, 1963, is eerily prescient about what was to come.  (Irwin Karp, legendary and curmudgeonly counsel for the Authors Guild and Authors League was there.)  It’s as if everyone saw Google and its mass digitization of books under the banner of fair use coming.  Not only that, they addressed it in legislation – it was an early hearing for what became the 1976 Copyright Act.

UMI found “Orphan Row” authors decades ago

3. Fifty years ago, people knew how to find authors and other rights holders of books, they didn’t just declare out-of-print books to be “orphans”.  UMI, Bell & Howell, and 3M raced to see which company could pre-clear the most books for the new print-on-demand technology.  UMI boasted it would “go to Timbuktu” to clear rights.

And, get this: Remember “Orphan Row,” our term for the list of 100-plus books that HathiTrust was preparing to release in ebook form?  UMI cleared the rights to seven of them decades ago, long before the Internet made searching for rights holders easy.  It’s amazing what you can find when you really want to find it.

Here are some “snippets” from that 1963 hearing, followed by the list of Orphan Row books UMI had cleared rights for by the 1970s.

KAMINSTEIN (Copyright Register): I was going to hold this for later on, but I have a telegram from Reed Lawlor, who says, “I suggest you consider adding the following section 6: ‘In any event reproduction of a copyrighted work in machine readable form for use in the analysis, citation and reasonable quotation of the work by means of an information storage and retrieval system shall be considered a fair use.’.” We were going to hold this for the discussion of fair use, but I certainly have no objection to opening up the subject here. Did you want to comment on it?

***

BROWN: If, as Mr. Lawlor suggested, you have a machine which simply absorbs information for the sake of giving you citations later, and which does not have the capacity to print it out again or to make copies, then it seems to me that that machine might be considered as simply an adjunct to note taking-in the sense that one can absorb a copyrighted work to make proper use of it, which may or may not be considered “fair use.”

SCHIFFER: With the way these things seem to be going, there’s a good possibility that, within the lifetime of this statute, they’re going to eliminate printed books for most purposes or for many purposes. In other words, if we take Professor Brown’s view that you can put material into these machines as a matter of note taking, you may find that, for practical purposes you have eliminated the market for the book entirely.

I think that the only way to handle these things is to make machine uses, in all forms, subject to exclusive control of the author, except to the extent that the use actually made by the machine is not a use within the concept of substantial taking in the ordinary sense. But the idea that you can feed a book into the machine in its entirety and then make it available to the world at large (as will undoubtedly happen; there are many library-types of computers under study now) will inevitably hurt the copyright proprietor to an extent which cannot be intended here.

***

May I just add one thing while I have the floor? I wonder if at the beginning, right in the introductory sentence-this is a matter of drafting-we couldn’t say “…the rights granted under copyright shall include the right to do or authorize any of the following with respect to the copyrighted work.”

***

SKIPPER: I am James Skipper, representing the Association of Research Libraries, and I’d like to speak for just a moment on this problem of information storage and retrieval. The point was made that, if a text goes into a computer and the entire text is printed out, this is a violation of copyright, I would be inclined to agree with this principle. However, I would hate to see anything written into the law that would inadvertently inhibit research.

***

With the potential of optical scanners, with the potential of indexing in depth for information retrieval, it is becoming increasingly necessary to feed the whole text in to the computer apparatus. But what you’re getting out is an analysis. You’re indexing literature; you’re not printing out the whole text.

***

ROTHENBERG: The information storage systems being defined now will not be confined to use in a library for literary analysis. For example, law offices will have sending and receiving sets to obtain information from a storage system at the nearest large law library. This may reduce substantially the need by law offices for many textbooks. Yet the information obtained from the machine, at any one time, might constitute fair use within the traditional sense.

Accordingly, the copyright owner must control the right at the very outset when his book is being placed into the machine, because it is the cumulative effect of the multiple fair uses which will effectively destroy the value of his copyright.

GOLDMAN: Are you suggesting that the need is to control putting the work into the machine?

ROTHENBERG: Yes.

GOLDMAN: And then you don’t have to worry about the use by taking it out of the machine?

ROTHENBERG: Then it will be merely by contract; whatever arrangement the copyright owner wishes to make with Remington Rand or whoever the company is, or the program.

***

IRWIN KARP (Authors League/Authors Guild): As Mr. Rothenberg points out, you’ve got another separate problem when it comes to using the machine in lieu of the book to begin with in the type of operation where you are actually wiping out the markets for multiple copies. There I don’t think you can solve it in any other way than by controlling the right to put it in. I think you have to control both the right to put it in and the right to take it out.

And so it came to pass. The next version of the copyright bill, a 1964 draft, provided that “the owner of the copyright under this title has the exclusive rights to do or to authorize and of the following” (emphasis added).  This language filled a frightening loss-of-control void in authors’ rights.

And, in Section 106 of our current copyright law: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the [exclusive rights listed in Section 106].”

Problem solved, or so we thought.

*******************

Orphan Row

After HathiTrust released the list of candidates for its Orphan Works Program, we had a look at the 1977 UMI catalogue. The very first book listed on the HathiTrust list of “orphans”—Preachers Present Arms, by Ray Hamilton Abrams—was listed in that catalog, along with six other “orphans”: Between Two Wars, by the Princeton psychologist James Mark Baldwin; Richard Allen Foster’s critical study The School in American Literature; a University of Michigan report titled Group Influence in Marketing and Public Relations; a 1953 biography of the composer Stephen Foster by the music historian John Tasker Howard; Claude Searcy McIver’s literary study of the novels of W.S. Maugham; Robert Gould: Seventeenth Century Satirist, by Eugene Hulse Sloane; and Henry Justin Smith’s It’s the Way It’s Written.

If the rights to so many works could be cleared using mailmen and pre-Google research tools, what excuse remains for the tech giants of today—with greater resources and fewer obstacles in their way—to build their empires on the backs of uncompensated creators?