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

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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