ARL Policy Notes
About those orphans

In the days since they filed a wide-ranging lawsuit against research libraries over their collaboration with Google and the nascent Orphan Works Project, the Authors Guild has dropped several clever blog posts walking through the orphan candidates list to see if they can find rights holders. While this kind of collaboration is exactly what HathiTrust and its partners had in mind when they posted the list, the Michigan Library has announced they are suspending the project so they can improve the search process in light of the information the Guild is finding. As Michigan says in its statement, this iteration is a salutary part of the process and does nothing to discredit the underlying goal of identifying and surfacing neglected works.

It is important to remember a few things as the project re-tools.

This kind of input from rightsholders is welcome and helpful

Found! Safe + well! Thanks!

It looks like the Guild’s blog is surfacing some of the kinds of information the published orphan candidates list is supposed to surface: not only the identity of one particular rights holder, but also ways to improve the search process so that it is likely to yield better information on other works. As commenter @mcburton points out, groups like the Authors Guild could play a more constructive role in this work by joining in the search process. That is why the list is published. Collaboration would surely be cheaper than the legal fees associated with an epic lawsuit, would generate less dissent from authors who support libraries, and provide a better service to members who themselves benefit from increased access to knowledge held in research libraries. And it would not dismantle an invaluable preservation resource of 10 million works from library collections.

Fair use and Section 108 apply in many situations even if you find a rightsholder

Finding an author, even finding a rights holding author (not all authors hold the necessary rights, after all), does not defeat the legal arguments in favor of Hathi’s uses. (See Jonathan Band’s brief for details on the lawfulness of the project). The key fact is really that these works are out of print and, hence, off the market. Of course, this does mean that for the couple of works that have been found to be in print, the legal case for their use is much, much weaker.

Hathi and its partners propose very modest, non-commercial uses that are traditional library uses and are beneficial for authors as well as users

Notwithstanding the Guild’s suggestion that the author they located had been rescued from a fate worse than literary death, the libraries’ use of these works is extremely modest and is more likely to resuscitate a work on its death bed than to harm it. As Ed Van Gemert, deputy director of libraries at the University of Wisconsin-Madison, has pointed out, finding authors is a great way to open up content even more, as authors (especially authors of out-of-print works) typically want their works visible, rather than buried in a dark archive.

Works designated as “orphans” will only be available for study by authenticated faculty and students at institutions who hold the physical book in their collections. The number of simultaneous users will be limited to the number of copies held in the library collection; if the library holds one copy, only one user (not “at least 250,000,” as the Guild implies) will be able to access the work digitally at a given time. Users can view the works in a browser, or download one page of the book at a time as PDFs; this mode of access replicates the limited access that users have to library books in the stacks.

At the same time, there is extraordinary new value in preservation, search, and access for the print-disabled. The likely impact for works like The Lonely Country, which is out of print, seems to have no braille or audiobook edition, and, in at least one major research library, has not been checked out since at least 1993 (and perhaps longer; records from earlier years were not readily accessible), is that more library users will find it when they are doing relevant research, more library users will be able to read it, and users far into the future will still have access to it even when the physical copies have long ago deteriorated. Finding your audience, reaching the print-disabled, and surviving throughout the ages is hardly a nightmare scenario for a writer.

Finding an author on Wikipedia ≠ finding a work’s rights holder

Indeed, finding an author in any case is not the same as finding the person who holds rights to a particular work. Authors sign away their rights, contracts get lost, publishers go out of business. It is simply not the case that a work is no longer an “orphan” once you can find that its author is alive, or that she left heirs, much less that her papers reside somewhere or that she has endowed a department in her name. Indeed, the slim pickings that the Guild has turned up over the last week - two works in print and one author with a literary agent, plus a lot of “strong leads” - shows how difficult this work really is. Two or three confirmed false positives out of 170 or so candidates is barely a 1% error rate.

The careful use of a question mark in their "Two more?" blog post acknowledges that what the Guild is finding is not the kind of information that would allow a good-faith user to ask permission for uses of these works. Anyone who knows anything about academic publishing knows that finding an author’s papers or even contacting an author and talking to them about their rights will rarely, if ever, settle the question of who holds the copyright. Even libraries who are themselves the custodians of an author’s papers can have significant difficulty determining the copyright status of these collections. Often the best you can do is a kind of quitclaim deed that says, “I don’t know if I have rights in this thing, but if I do, I won’t sue you.”

So, while the commenters on the Authors Guild blog have turned up what they consider to be “strong leads” on rights holders for books on the candidate list, we should be clear about the limits of these discoveries.

The search should be reasonable given the circumstances, and it will never be perfect

These facts about the difficulty of locating bona fide rights holders should help folks see that perfection is not an option in this context. There’s no question that, given infinite time and resources, there would be no ‘orphan works’ problem. A hundred thousand genealogists together with as many lawyers could surely find every rights holder there is to be found. The whole idea of “orphan works” assumes that at some point, a reasonable search will still come up empty-handed. A recent study from the UK suggests that, given a more normal staffing situation (i.e., ordinary librarians), searching for orphans manually on an item-by-item basis is inherently unworkable for large-scale projects, estimating that this process would take 1,000 years to process 500,000 works. That’s 20,000 years to process the 10 million volume HathiTrust collection. Crowd-sourcing and other innovations can cut down on that time, but clearly a perfect search is impractical and unnecessary given the modest, non-commercial nature of the use involved here.

Recent proposals for orphan works legislation reflect this reality. The Shawn Bentley Orphan Works Act of 2008, for example, would have required a search that is “reasonable under the circumstances,” a qualified phrase that leaves room to factor in the nature and value of the use as well as the cost of the search. Adapting a novel for a commercial motion picture justifies a more diligent search than scanning photographs in a historical archive for preservation. Library searches should be thorough, but they should be proportional to library uses.

Threatening to unplug the HathiTrust is extremely shortsighted and unhelpful

The extreme nature of the remedy the Guild seeks shows how little the officers at the Guild value the preservation and stewardship of millions of volumes in library collections. Redundant digital storage ensures that works on crumbling acidic paper, works held in only a few institutions, works long out-of-print and forgotten by their authors and publishers, will remain part of our cultural heritage for generations to come. It makes those works discoverable to a new generation of scholars through the development of fair uses such as search and access to orphan works. Any author whose work was helped or inspired by research at a library, as Mr. Turow has proclaimed his own work was, should applaud this increased access and preservation. And yet, the Guild thinks it is better to pull the plug on this resource than to incur the inevitable risk of a few false positives in the search process.

So, while it is at first glance discouraging that the identification process seems to have misfired so soon, we should keep these mistakes in perspective. They do not change the legal case, and they will only make the process stronger and more useful in the long run.

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