U. of Michigan Tests Murky Waters of Copyright Law by Offering Digital Access to Some 'Orphan' Books - Wired Campus

U. of Michigan Tests Murky Waters of Copyright Law by Offering Digital Access to Some ‘Orphan’ Books

June 23, 2011, 7:31 pm

The University of Michigan has taken an unprecedented step into a murky area of copyright law in the name of making thousands of its library books available to campus users in digital form. At least one publishing official calls the new practice illegal, while others say it could help solve the thorny issue of so-called “orphan works,” books in copyright whose owners are unknown.

On Thursday the library announced that books in its digital collection that have been identified as orphans after a careful search for a copyright owner will be available for reading online—but only to users on campus. Hundreds of thousands of books in the library have been scanned as part of the university’s partnership with Google, which is working with several major libraries to build a comprehensive digital collection. The books are now searchable in a public online database, but full electronic text of the orphan books have never been shared with users because of concerns about whether copyright law allows such digital access.

“These books were meant to be read, and we want to make them easier to read,” said Paul Courant, dean of libraries at the University of Michigan, in an interview on Thursday. “All we’re doing is making them available to our students, faculty, and staff who could already come into the library and read these books. I don’t see why anybody would be against this.”

But at least one publishing official is already raising concerns about the plan.

“Mr. Courant may believe this step is justified under fair use, but as far as I know, there is nothing in either the copyright statute or the case law to justify such a sweeping claim,” said Peter Givler, executive director of the Association of American University Presses, in an e-mail. “We all know that orphan works are a problem, and we would all benefit from a good solution. The plain fact is, though, that their orphan status isn’t determined by the elfin whimsy of private parties, but federal law. It’s up to Congress to fix it, not Google or the University of Michigan.”

Mr. Courant bristled at the characterization of his library’s effort. “I plead not guilty of elfin whimsy,” he said, noting that the library has set up a careful, time-consuming, and expensive procedure to determine whether a book is truly orphaned—an effort it announced in May.

The university plans to make bibliographic information about books it identifies as orphans available on a public Web site, and if any publisher or copyright owner sees one of its books being used without permission and comes forward, librarians will work with them to resolve the issue. “We want the process to be extremely open and visible, with bright lights shining everywhere,” Mr. Courant said. The goal, he added, is to figure out a way to “do a reliable, robust job of tracking down the foster parents of these orphan works.”

He said he hopes that because most of the material is scholarly, or otherwise never had big sales commercially, that copyright owners who do emerge from the woodwork will agree to make the books available digitally for free under a Creative Commons license. “If somebody calls me up and tells me my Great Aunt Minnie published a monograph on how to play piano, and would I mind if it were used by Stanford University library, I’d say hot damn,” he said, noting that he would quickly agree to free access.

“My attorney says this is legitimate under fair use,” said Mr. Courant. “When people find ways of making things better for people without harming anybody else, I think they ought to do that. I really do.”

The electronic copies of the books are stored online in a joint effort with other universities called the HathiTrust Digital Library, which has a total of 6.4 million books that are not in the public domain. Not all of those are orphans, but one recent estimate found that more than two million of those books are orphans. Such books are effectively in digital limbo because their owners cannot be found to ask permission for digital use.

The university expects the first orphan e-books to become available to on-campus readers through the new effort starting in October.

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mbelvadi

Congrats to the U of Mich librarians for having the courage to do this. I hope they can share with the rest of us what they are finding the metrics are in terms of per-book staff time cost to determine that a book is orphaned. That process has often seemed to many of us to be more expensive per book than the typical orphaned book itself is “worth”. If UMich has gotten that cost down, I’d be very interested in learning how.
d_fevens

I agree with Peter Givler. The University of Michigan has no more right to define “orphan works” and thus violate copyright law than they do to define who has the right to proceed through red traffic lights.
Douglas Fevens,
Halifax, Nova Scotia
<a href="http://www.facebook.com/douglas.fevens"The University of Wisconsin, Google, & Me
educ8me

Maybe if the U of Mich takes this giant step forward it will force the issue nationally and globally to consider how to handle such books. If we wait for federal government to get to it, we will never see the books in our lifetime. The government doesn’t have to do everything for us. They are not our parents, we are them! Hurray for the University’s bold step. Let private industry try to solve some of these thorny issues rather than depend on “father” government to screw it up.
march_hair

Dear Mr. Courant,

I love you forever for uttering the sentence “I plead not guilty of elfin whimsy.”
bizprof55

Congress has been what I consider unconstitutionally lax in addressing this major issue. Orphan works are meant to be read, perceived, used and enjoyed by the public, following the primary mission of copyright “to promote the progress of science and useful arts”. Sometimes, it takes “civil disobedience” to force the lumbering, unbearably slow legislative hand. I’m on board with U. Mich in this brave effort. Moreover, perhaps the metrics that they have created to declare a work an orphan work could be examined by other interested (and academic) parties and/or improved if need be to ensure that the determining process is of the highest standard.
sand6432

The University of Michigan need not claim their use of these “orphan works” to be fair use in order to do what it is doing. Obviously, officials there have carefully researched who the copyright owner might be and decided that there is minimal risk, after such analysis, in making the restricted use of them that is proposed. Should a copyright owner eventually emerge, the limited nature of such use would weigh in favor of minimal damages. Everyone, including every publisher, that uses an orphan work–or, indeed, anyone doing a fair-use analysis–is essentially weighing risks against potential benefits, and Michigan is doing nothing different here. I say more power to them. It would be an additional service to the public, including publishers that might want to make use of such works, if Michigan would make publicly available the documentation behind each search for a copyright owner, so that others could benefit from the efforts already made and not have to duplicate the whole process in their own cost/benefit analysis.—Sandy Thatcher
pcourant

Sandy, I like your interpretation. Please be assured that we have every intention of documenting our findings in detail. We view that as an essential part of the value of this project. — Paul Courant
Leroy_Mouchelette

If only there were five or six other universities, in the US and other countries, as bold and courageous as UMich. Congratulations! This is an envelope that desperately needs pushing.
http://www.thefutureofpublishing.com/ Thad McIlroy

This is no doubt true. However given that going through red traffic lights carries a lot of potential risk, while this carries very little downside and a great deal of upside. As we continue to await solutions from our ever-so-informed legislators I give Mr. Courant’s effort a big round of applause. He’s doing this with great care and with an eye to helping others, not himself. Go for it!
librarylvr

I, too, laud UMich for taking a bold and much needed step toward opening access to orphan works, if only to their institutional community. Universities must take some level of risk to challenge the status quo. Congress has malingered long enough with amendments to copyright law, particularly with regard to orphan works & technology. Material that is of no demonstrated concern to a copyright owner should be freely accessible to the American public, if not the world, to use, modify, distribute, etc.–in essence, create culture (a la Lessig). Most of the copyright/IP legislation approved, introduced, or pending appears to favor the commercial aspect of copyright and clamp down on the rights of the public. There must be a balance.

On another note, I loved Courant’s use of “hot damn”!
mmcferrin1616

This seems like a win for everyone. Readers get increased access to the works in question and, on the off chance that there is a valid copyright, it seems as if the U of Michigan will be more that willing to adhere to the law. Bravo!
zenbrarian

Mr. Courant and the University of Michigan have just won the hearts and support of academic librarians everywhere. Hats off to the U of M for their leadership.
Leroy_Mouchelette

Who is the victim of such a “violation”?
smith22

Indeed. Show the usage stats on these scholarly orphans in 3-5 years and your question will be even more pertinent.
francesgrimble

I see no reason why libraries, academic or otherwise, should be exempt from observance of copyright law. These books are ALREADY available through the University of Michigan libraries, and probably, also other libraries and on the used book market. It’s not like the U of M is really making unavailable works available.

This action seems designed to generate a copyright test case, much like the suit against Google for scanning the books in the first place. Not all the authors, illustrators, and other copyright owners will appear within 90 days, consequently their works will be e-distributed without their permission, probably with no DRM so that the works will be all over the world, free, in a short time.

Two versions of the proposed Google Settlement have been rejected by the courts, and an opt-in-only arrangement has been suggested by the US Justice Department, among other parties. So what, now the libraries are testing whether a nonprofit free distribution–by entities that, unlike Google, are not currently being investigated by the Justice Department–will fly by the courts? The proposed Google Settlement promises that Google will pay for all lawsuits against the libraries. Even though that Settlement has been rejected by the court, is Google paying the U of M’s legal fees for the lawsuits this project will undoubtedly spark? Mr, Courant–how exactly is Google involved in this action? Other than, of course, scanning all those books free of charge for you?