[BOAI] Re: A2K and orphaned work: the rise of the Open Access Trust Inc
Harry Lewis
lewis at seas.harvard.edu
Wed Apr 15 22:03:32 BST 2009
See brief comments below. Also adding Lewis Hyde who joins me in the
proposed intervention, and bccing Charlie Nesson and our other
lawyers. (Allo, Bernard! Do you remember me from your Harvard days?)
On Apr 15, 2009, at 2:22 PM, Bernard Lang wrote:
>
> Note : this is Bcc copied to Harry Lewis and James Grimmelmann, since
> it was not clear to me that using their email visibly on the list
> was OK.
>
> apologies for the style : I am short on time.
>
>
> Hi,
>
> I tried to react quickly to the post on the BOAI list about the Google
> Book Search settlement.
>
> Since then, I have been reading a bit more, and particularly some of
> the analysis by James Grimmelmann (though honestly, I had only time to
> scan it quickly).
>
> One important point is not fully clear to me : can orphan work (and/or
> out-of-print books) be made available by Google or anyone else in
> digital form according to the proposed settlement ? (no time yet to
> read the full 141 pages). Apparently yes (can someone confirm ?) from
> what I read in
> http://news.cnet.com/8301-13578_3-10076948-38.html
> This is not fair use by any standard, and a clear violation of
> exclusive rights.
Yes and yes. As the letter seeking intervention sent on behalf of me,
Lewis Hyde, and the Open Access Trust says, "The parties in this case
propose to change this status quo by clarifying that the use of
orphaned works is, indeed, actionable copyright infringement; vesting
in Google a monopoly in the lawful use of orphaned works; and
dividing between themselves the proceeds of this monopoly."
>
>
> If it is not allowed. Is there a point is being able to search books
> that are essentially unavailable anyway ?
>
> Whatever, what Google is allowed to do is apparently not known to be
> in the fair-use range. This is actually the purpose of the settlement:
> not to find out.
>
> But if it is not fair-use, the whole settlement in an infringement on
> the exclusive rights of the orphan work rightholders. And I do not
> understand how a court can allow on a settlement of this issue without
> consent of the rightholders. My guess from what I read is that this
> power of the court results from the nature of class actions (which
> would mean that all authors are involved, whether or not they
> participate - is that correct ? - I know little of class actions).
> This is specific to US judicial system, but cannot in any way exempt
> the US judicial system from the international treaties.
>
> If the settlement is only fair use, it is useless. If not, it must
> necessarily be a new category of "exceptions and limitations", which
> has to pass the 3 steps test of the various treaties. Is that the
> case?
> http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350
> http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html#P83_10885
> http://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm#article13
>
> It is actually quite disputable whether for profit exploitation of
> digital versions pass this test.
This is an angle I certainly don't know anything about, which is why I
am sharing your comments.
>
>
> But whatever the answer is, exceptions or limitations cannot be in
> favour of specific parties. They have to aply to everyone, and it
> seems not to be the case with this settlement, which is rightly one of
> the major criticisms.
>
> My experience with the orphan works issue is that several parties want
> to control orphan works for their own benefits (most notably
> collective copyright management organizations), at the expense of the
> public increasingly plagued with them because of ever longer copyright
> (which actually works against the interests of living authors, but
> that is another issue). This sound pretty much like some guys get
> what they want cheaply, allowing for more postponement of a proper
> settlement of the orphan works issue.
>
>
> I do understand the benefits to be had from this particular
> settlement. I am very concerned that by being lured by some immediate
> benefits, the public will lose considerably on the longer term, if we
> compare this with a proper global settlement of the whole issue via
> the Orphan Works Act, which is - in my opinion - a very good proposal.
>
> If Google can sell orphan works, accepting this settlement will
> probably kill for good the Orphan Works Act. because it gives
> collective rights management organizations exactly what they want :
> force people to pay for orphan work, even if the authors will never
> show up, or even if the authors are actually opposed to it (they are
> no available to say so).
>
> And I do believe that international treaties may be the way to either
> stop the settlement, or modify it, thus making it fairer and actually
> closer to the Orphan Works Act.
>
> But my informed opinion is that it should not be accepted if it
> involve full exploitation of orphan works, such as selling orphan
> works for a compulsory fee. And I also think it goes against
> international treaties.
>
> BTW, is anyone defending the public and the unavailable authors in
> this trial.
If you read the brief letter seeking to intervene, linked to above and
attached below as a PDF, that is a way of describing the reason for
our intervention.
>
>
> In any case, it will cause considerable negative international
> reaction, all the more if it give excessive/exclusive advantages to
> Google.
>
> I hope I have been clear and on topic. I unfortunately lack time to
> get into this in depth in the whole issue within te alloted time frame
> (end of April from what I understand). And I am used to discussing
> these issues only from a French legal viewpoint. However, I would be
> glad to discuss specifics if anyone is interested.
>
> cordialement
>
> Bernard Lang
>
> please write preferably to my Cc address above at datcha.net
>
> * Bernard Lang <Bernard.Lang at inria.fr> note le 15-04-09 :
>>
>> Hi,
>>
>> I was not aware of these events, which percolate only now to my far
>> away country. Too bad, because I have been leading a local fight
>> against attempts to take undue control of orphan works in Europe, and
>> wrote a report on the issue (in French ... but I am quite willing to
>> repeat into English the essential points, or whatever is deemed
>> useful).
>>
>> http://www.datcha.net/orphan/oeuvres-orphelines-BLang.pdf
>>
>> This paper is actually an annex to an official report (that has
>> opposite conclusions - what do you expect ?)
>>
>> http://www.cspla.culture.gouv.fr/CONTENU/rapoeuvor08.pdf
>>
>> I have a page of references on the topic of orphan works, in case it
>> can help :
>>
>> http://www.datcha.net/orphan/
>>
>>
>> I am reading what is available on the US issue raised here (by the
>> previous message) to see whether my own experience and work on the
>> topic can be of any help. But anyone interested can write directly
>> to
>> me at bernard.Lang at datcha.net (preferably)
>>
>> The recent articles I have been reading so far are moderately helpful
>> ... I am looking for one that explains clearly the nature of the
>> settlement. I find it strange that anyone can settle on behalf of
>> unreachable rightholders, even with the help of a court ... this
>> seems
>> incompatible with international treaties. The USA may have a
>> different legal system than my country, but international treaties
>> are
>> the same.
>>
>> Cordialement
>>
>> Bernard Lang
>>
>>
>> P.S.
>>
>>
>> Actually, I tried to raise concern regarding orphan works in the open
>> access community, about 15 month ago, even though things seemed then
>> in a better shape in the USA with the (quite good) Orphan Work Act
>> proposal which apparently it fell through. Trying not to spam
>> everyone, I did it only on Stevan Harnad list, not on the BOAI list.
>> With very little success:
>>
>> Date: Mon, 28 Apr 2008 17:10:41 +0200
>> From: Bernard Lang <Bernard.Lang at inria.fr>
>> Subject: Orphan works
>> To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM at LISTSERVER.SIGMAXI.ORG
>>
>> The issue of Orphan Works is more and more discussed in various
>> places.
>>
>> Orphan works are works whose right holders cannot be located, for
>> example to ask permission to use their work.
>>
>> Few countries have a legislation on orphan works, but many are
>> preparing some.
>>
>> I do not recall that the issue has been discussed on this list,
>> and it
>> is not immediately clear whether it should.
>>
>> However, my own knowledge of the issue and of some current proposals
>> lead me to believe that we should pay attention to it. One
>> proposal I
>> know of would, for example, place any orphan work in the custody on
>> collective copyright management. And collective management
>> organizations are not exactly the best friends of open archives.
>> Indeed, the proposal I have in mind is strongly pushed by publisher
>> associations, and did reach a fairly high political level.
>>
>> More generally, there are many people who consider that making
>> anything available for free (and devoid of advertising) should be
>> somehow forbidden, and be considered a threat to free market,
>> democracy, and other free world values. I am unfortunately not
>> joking.
>>
>> Questions :
>>
>> - do you know whether the issue is raised in the context of open-
>> access ?
>>
>> - where ?
>>
>> - should it be discussed, and where or how ?
>>
>>
>> Bernard Lang
>>
>> No answer, except for a commercial ad, and Stevan Harnad claim that:
>>
>> The question of orphan works is interesting and important, but,
>> like so many interesting and important side-issues (1) it is not
>> central to Open Access, (2) it risks becoming yet another
>> distraction from Open Access, and (3) if we can just stay focused
>> on providing Open Access (by self-archiving, and mandating the
>> self-archiving of the current refereed journal literature), that
>> Open Access itself will be the greatest asset to ensuring that
>> orphan works are, in their turn, made Open Access wherever
>> possible. ...
>>
>> and one more positive from Klaus Graf <klausgraf at googlemail.com>
>> citing Peter Suber and giving also some references:
>>
>> The best summary of the orphans problem which has been written in
>> German is from Rainer Kuhlen in his new book "Erfolgreiches
>> Scheitern" 2008 (pp. 315 sqq.). Kuhlen has also large chapters on
>> Open Access he supports as speaker of the
>> Urheberrechtsbuendnis. The book is online at:
>>
>> http://www.inf-wiss.uni-konstanz.de/RK2008_ONLINE/node/18
>>
>> More information on orphans in German and English in my weblog:
>>
>> http://archiv.twoday.net/search?q=verwaist german
>> http://archiv.twoday.net/search?q=orphan english and
>> german
>>
>>
>> I did try again :
>>
>> Date: Thu, 2 Oct 2008 12:28:48 +0200
>> From: Bernard Lang <Bernard.Lang at inria.fr>
>> Subject: Re: Nihil obstat + orphan works
>>
>> BTW, since I am talking. Is there an interest in orphan works on
>> this
>> list. I am asking because many scientific publications have a
>> potential to become orphan works : since the author does not get
>> royalties, he has no incentive to leave personal information to be
>> tracked after he ceases to be an active professional.
>>
>> I am asking because, though the proposed legislation on orphan works
>> seems rather well designed in the USA, there are very different
>> proposals in Europe that may reveal dangerous. In a nutshell,
>> orphan
>> works would be managed by collective management organizations mostly
>> controled by publishers. Where that would lead us is anyone's guess.
>>
>> Bernard Lang
>>
>>
>> which did not receive a single reply.
>>
>>
>>
>>
>> * Carolina Rossini <carolina.rossini at gmail.com> note le 14-04-09 :
>>> http://openeducationnews.org/
>>> A2K and orphaned work: the rise of the Open Access Trust
>>> Inc<http://openeducationnews.org/2009/04/14/a2k-and-orphaned-work-the-rise-of-the-open-access-trust-inc/
>>> >by
>>> Carolina Rossini
>>> April 14, 2009 · No Comments
>>> <http://openeducationnews.org/2009/04/14/a2k-and-orphaned-work-the-rise-of-the-open-access-trust-inc/#respond
>>> >
>>>
>>> On April, 13 a group of professors lead by Charles Nesson, Lewis
>>> Hyde and
>>> Harry Lewis requested a pre-motion conference to Judge Denny Chin
>>> seeking to
>>> file a motion to intervene in the case *Authors Guild v. Google.*
>>>
>>> These scholars represent the community of readers, scholars, and
>>> teachers
>>> who use orphaned works. Orphaned works are works under
>>> copyright, but with
>>> a copyright holder who has died, cannot be found, or otherwise has
>>> abandoned his work. In the status quo, users like us and
>>> commercial users
>>> like Google can and do use orphaned works, although we do so
>>> against a
>>> backdrop of potential legal liability should the owner of an
>>> orphaned work
>>> later emerge.
>>>
>> ........
>> ........
>> ........
>>
>> --
>
>
> --
> Après la bulle Internet, la bulle financière ...
> Et bientôt la bulle des brevets
> http://www.strategie.gouv.fr/revue/IMG/pdf/article_HS7RL2.pdf
> http://www.huffingtonpost.com/brian-kahin/the-patent-bubble_b_129232.html
> la gestion des catastrophes comme principe de gouvernement
>
> Bernard.Lang at inria.fr ,_ /\o \o/ Tel +33 1 3963 5644
> http://bat8.inria.fr/~lang/ ^^^^^^^^^^^^^^^^^ Fax +33 1 3963 5469
> INRIA / B.P. 105 / 78153 Le Chesnay CEDEX / France
> Je n'exprime que mon opinion - I express only my opinion
Harry R. Lewis
Gordon McKay Professor of Computer Science
http://www.eecs.harvard.edu/~lewis/,
http://bitsbook.com
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