Google Book Search and Orphan Works - PK

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is a blog response by Jef Pearlman in the PK blog. Jef is a distinguished attorney on the subject of Free Speech, the First Amendment and telecommunications. He has also a member of the California Bar and assists Public Knowledge as a staff attorney. The response includes a rejection of Google Book Search as a viable solution to the orphan works act. “While it’s a step in the right direction (and has the benefits described), it’s not a very big one, nor is it enough to obviate the need for Congress to step in.”

The main point in this blog post is that the Google Book Search would only work for books, and not for any other media. The effects of the Google settlement are divided in two parts. Firstly, it gives Google the opportunity to offer a large amounts to the public, both in searchable and in full form. This is a clear win for Google, and a clear win for the public as well. Secondly, the agreement calls for the creation of the Google Book Rights Registry. The BRR provides incentive, and the opportunity for authors to un-orphan their work.

The blog draws a parallel between the BRR and the existing registries for other media (ASCAP, BMI) and states that only the artists who have signed up are allowed to participate, leaving the rest out of the loop. The implication is that the BRR will not significantly alleviate the orphan work problem because even though users will be able to preview the copyrighted material of such works though Google, they will not be able to do anything more than just view it. In case the author has not signed up with the BRR, the work will be orphaned, and the user will not be able to identify the copyright owner. This is the essential orphan works problem. In this sense, the Google Book Search settlement only gains weight as an orphan works solution after a lot of authors have signed up.

Jef also draws attention to the fact that this is primarily an agreement between Google, the AAP, and the Authors Guild. As such, the Registry is limited to the authors who belong in those two groups, and the authors who chose to register individually. However, it does not provide any protection to the user of an orphaned work. If I use a book and the author resurfaces to claim her rights, I am treated just like a regular infringer. Most importantly, the Registry fails to address other media, as well as other digitization efforts other than Google. The argument, then, can be summarized as a calling for a greater governmental intervention to solve the problem, and a position against Registries, in general, which cannot represent some types of media (visual works, letters, personal recordings).

The problem, as offered here, is the limited scope of the Google Book Search agreement. Although it does limit the amount of orphan works, there is a huge amount still lurking in the literary purgatory. The source is important for my argument because these are the claims I need to refute to support my case.