Posted by Victoria Strauss for Writer Beware
The issue of orphan works–out of print, still-in-copyright books, films, photographs, etc. whose rightsholders can’t be found–is one that has been much in the news lately.
Concern over a potential monopoly on orphan works was a major component of the criticism of the now-defunct Google Book Settlement, which sought to resolve authors’ and publishers’ objections to Google’s unauthorized scanning of in-copyright books.
Orphan works are also at the heart of the Authors Guild’s recent lawsuit against a number of US universities, which have combined digitized books–including unauthorized scans provided by Google–into a repository called HathiTrust. HathiTrust’s proposed Orphan Works project, which was intended to make the full text of selected orphaned books available for faculty and student download, was put on hold after the Authors Guild demonstrated that HathiTrust’s research process was flawed, and many of the books included in the project weren’t orphans at all.
Why should we worry about orphan works? A good summary of the importance of this issue is provided by former US Register of Copyrights, MaryBeth Peters:
The problem is pervasive. Our study recounts the challenges that
publishers, film makers, museums, libraries, universities, and private
citizens, among others, have had in managing risk and liability when a
copyright owner cannot be identified or located. In testimony before
the Senate, a filmmaker spoke of the historically significant images
that are removed from documentaries and never reach the public because
ownership cannot be determined. In testimony before the House, the
U.S. Holocaust Museum spoke of the millions of pages of archival
documents, photographs, oral histories, and reels of film that it and
other museums cannot publish or digitize.
The problem has been created, in part, by the changing provisions of copyright. Copyright used to be dependent upon rightsholders’ obligation to register their works; if works weren’t timely registered or re-registered, they fell into the public domain. Now protection is automatic, with no need for registration, and the term of copyright has been extended far beyond authors’ lifetimes. The unintended result is a huge pool of orphan works–whose rights no one is managing, and whose content no one can use. (How huge? It’s estimated that in Europe alone, over 3 million books–13% of all in-copyright books–are orphans.)
Many people feel that legislation is the answer–both to create a legal definition of orphan works and to reduce the liability of those who want to use them. But the most recent legislation proposed in the USA failed to pass, and the EU’s proposed directive on orphan works is still being debated.
Now France has taken action–and its new law, passed last week, is a jaw-dropper. It empowers the Bibliothèque Nationale de France to create “a freely accessible online database” of all works–not just orphans–published in France before 2001 that are currently out of print. Once a book has been listed in the database for more than six months, the right to “authorize its reproduction and display in digital form” transfers to a collective management organization, which thereafter has the power to exploit those rights, including selling the works and distributing a portion of the proceeds to the rightsholders. To be removed from the database, rightsholders must opt out in writing before the six-month waiting period expires. If a rightsholder misses the six-month deadline, s/he can only demand removal by proving that s/he is the sole holder of digital rights (good luck with that, if you have a pre-digital contract) or by arguing that the work’s “reproduction or display [is] prejudicial to his honour or reputation.”
If you stalled out in the middle of that long paragraph, here’s the short version: any book published in France–which would include translated foreign-language books–that went out of print in France–not necessarily elsewhere–before 2001, can be scanned into a database. If authors–who may or may not be notified of their inclusion–do not opt out within six months, they lose control of the digital display and sale of their work.
This is a rights transfer on a massive scale that makes the Google Book Settlement look benign. By including any out of print book–not just those whose rightsholders can’t be located–it goes far beyond the issue of orphan works. By forcing authors to opt out in order to regain control of their work, it turns copyright law on its head. The problem of orphan works urgently needs solution–but not via measures like this.
French authors, who are rightly concerned about this draconian legislation, have been signing a petition protesting the law. Let’s hope they are successful in forcing change.
For my more wonky readers: what I’ve noted above is just the start. There’s much more to object to in the new law–see this long blog post from Gillian Spraggs of Action on Authors’ Rights for a detailed summary.
One interesting apparent feature of the law: the opportunity it potentially affords publishers to get around the difficulties of claiming the digital rights to books with pre-digital contracts. For any work in the database whose author doesn’t opt out within the six-month window, the collective management organization is empowered to offer digital rights to the publisher that holds the print rights. As Gillian Spraggs comments, “what this legislation has achieved is to hand the publisher of the print
edition the digital rights to any out-of-print twentieth-century French
book that they think might make them money in a digital edition.”
And–oh yes–if authors who didn’t realize their works were included in the database discover this only after a publishing deal has been brokered, they are out of luck. Spraggs writes, “If an author misses the six months’ window to reclaim a book, then even
if he/she subsequently proves ownership of the rights (and that may well
be a difficult process), then it will most likely still remain subject
to the terms of a contract negotiated by the collecting society. That
contract (if exclusive) will then become non-exclusive, but it will
still last for up to five years.”