Notes de Lecture de l'article de Pamela Samuelson
GBS = Google Book Settlement
BRR = Book Rights Registry
ISD = Institutional Subscription Database
UWF = Unclaimed Work Fiduciary
In keeping with the Supreme Court‘s Eleventh Amendment rulings, some courts have held that state universities cannot be found liable in damages for infringement of
copyrights. These courts have also questioned whether Congress can override the state sovereign immunity norm even when evidence exists that state actors are engaged in or contributing to ongoing infringement.
The United States is one of the very few countries in the world with a broadly applicable fair use doctrine that limits the scope of copyright protection. Even if a person has engaged in unauthorized acts that implicate exclusive rights granted to copyright owners, a use that is fair is not an infringement.
Four factors are used in judging the fairness of a use:
- the purpose of the use,
- the nature of the copyrighted work,
- the amount and substantiality of the taking,
- and the harm the use may cause to the market for the protected work.
University libraries are very interested in having digital repositories of their books, as physical book collections take up valuable real estate on college campuses and are expensive to build and maintain. Because students are becoming increasingly used to having online access to works of authorship, physical libraries are visited less frequently now, and there is a real risk that the learning embodied in research library collections will become virtually invisible unless it can be made available online. Patrons are, moreover, demanding online access to books as well as other materials.
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When a university research library in 1960 bought books published that year for its collection, for example, it would have known that the books would likely be free of copyright constraints after $$$ 1998 $$$, for the copyright term at that time was 28 years. While it was true that the book‘s copyright owner could seek a second 28 year copyright term, he or she was unlikely to do so if the book was out-of-print for more than two decades. So the book would effectively be in the public domain after the first 28 year term expired.
The total number of orphan books is likely to be in the millions. One disinterested source, for instance, has estimated that between 2.8 and 5 million books of the roughly thirty million books in U.S. libraries
It would help library digitization projects, as well as projects like GBS, if reliable renewal records were available online so that would-be digitizers could determine whether the copyrights were, in fact, renewed or the book is in the public domain for non-renewal. An estimated sixty percent of books published in that thirty year period are, in fact, public domain books; the problem is that no one knows which ones are still in-copyright and which ones are not. It would be very costly for nonprofit digitizers to go to the Copyright Office to make manual searches for renewal information.
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One of the most significant reform(ation)s of copyright rules for books that will flow from approval of the GBS settlement is the license it would give Google to
commercialize all out-of-print books within the settlement, subject to the right of specific copyright owners to forbids this. The settlement would, in essence, grant Google a compulsory license to commercialize these books because although rights holders can say no, they must come forward to do this; and in the meantime, Google has the right to commercialize their books.
Among the most fervent supporters of the proposed GBS settlement is the National Federation of the Blind (NFB).246 This is because approval of the GBS settlement promises to dramatically increase the accessibility of books—perhaps to twenty million volumes—for the estimated 30 million persons who suffer from print disabilities. This would enable them to become better educated and more productive members of society.
Now that we have identified numerous respects in which the GBS settlement would achieve results akin to legislative reforms of copyright law, it is time to turn to two important questions: one is whether the settlement should be approved, and a second is whether the legislative or quasi-legislative character of the GBS settlement is just an interesting side-effect of the settlement, or an additional reason why the GBS settlement should either be approved or disapproved.
The GBS settlement seems like legislation for at least three reasons: first, because of the numerous divergent interests among types of class members, second, because of third party effects that would flow from approval of the settlement, and third, because the agreement would establish a new set of default rules for copyright owners in books and establish a complex forward-looking commercial enterprise and a new collecting society, which go far beyond the particular issue in litigation in the Authors Guild case.
For the sake of future generations, it is important to seize the opportunity that the digital networked environment provides to construct a vast library that will last forever without the restrictions and risks of monopolistic conduct that the GBS settlement would impose.