NWU Members Participate in Copyright Symposium

NWU Members Participate in Copyright Symposium - NWU Book Division Co-Chair Edward Hasbrouck reports

NWU members Edward Hasbrouck, Mike Bradley, and Bruce Hartford participated in a symposium on copyright law, "orphan works" the holders of some rights to which cannot be located by some of those who want to use them, and mass digitization of books (i.e. scanning and conversion to e-books of entire library collections) at U.C. Berkeley on April 12-13.

A white paper endorsed by the NWU, "Facts and Fallacies of Orphan Works" (pdf), was included in the conference proceedings and distributed at the event.

As an indication of the tone of the symposium, the most enthusiastic and positive response was to one of the speakers, Prof. Lydia Loren, who suggested that instead of referring to "orphan works" we should call them "hostage works" (a suggestion that was, in fact, taken up by several later speakers!) for which "special operations" (illustrated in her slides by armed commandos) would be necessary to "free" them from "rightholders" who are keeping them from the would-be reading public.

Unfortunately, most of the proposals for licensing-by-default of books and other works determined to be "orphaned", as well as broader proposals that would include default licensing of all "out of commerce" or "out of print" books, have emerged from discussions in which working writers have not been included. Although the NWU has been in dialogue with the organizers of the symposium, who acknowledged this as an "oversight", none of the speakers represented working writers.

The danger is that many works will be categorized as "orphans", and even more as "out of print" in the original editions on paper, even though authors have reissued them (and are earning royalties or Web advertising revenues from having done so) as e-books or on the Web.

I have tried to explain these problems in a follow-up article directed particularly to librarians and scholars: What do authors fear from "Orphan Works" licensing proposals?

Licensing-by-default of orphan works" (and, munged with them, "out of commerce" works) may seem a peripheral issue. But following the rejection of the proposed Google Books settlement, and with other library book-scanning projects under separate legal attack, legislation to authorize scanning and distribution in e-book or online form of "orphan works" is at the center of proposals to legalize mass scanning and electronic distribution of backlist books and periodical archives, without permission of (and in most cases without payment to) the writers.

The threat of laws like this is real, in the US and in other countries (especially the UK) where books and periodicals by US writers might be found in library collections and swept into these schemes.

Earlier this year France passed a shocking law allowing scanning of "orphan" works *and* allowing publishers to issue e-books of works they have issued on paper that are out of print in that format, regardless of whether those publishers ever acquired electronic rights. French and other writers have protested this law as a violation of fundamental rights. See: France Guillotines Copyright, Pétition Le droit d'auteur doit rester inaliénable, and Le ministère de la Culture face aux auteurs du Droit du serf.

Similar legislation is pending in the European Union, and if passed would of course include the UK, where many US publishers -- both commercial and academic -- simultaneously publish first editions. (We've been having productive discussions with some European Parliament staff, but there's no consideration yet in the EU debate of working writers' concerns.)

International entities such as IFRRO (in which the NWU participates, and with whose members we have raised our concerns) and WIPO (with whom we have also raised our concerns) are also looking at the issue, with WIPO considering the possibility of changes to the fundamental copyright treaty, the Berne Convention, for library book-scanning.

And in the US? In her keynote speech at the Berkeley symposium, US Register of Copyrights Maria Pallante (a former Executive Director of the NWU) said that "orphan works" legislation would be introduced in Congress next year, after the elections, with the Obama Administration's support.

The argument for such a law in the US was made by Prof. Pamela Samuelson of Berkeley -- the person most responsible for the symposium, and on other issues an ally of the NWU -- in an op-ed in the LA Times. Prof. Samuelson's arguments, which we will have to deal with in coming debates in Congress and with the public, include:

(1) Nobody is making any money from "orphan (or "out of commerce") works, so who cares what libraries do with them? (This ignores the ways authors are profitably re-issuing or re-using works, as e-books and/or online, that are "out of print" in their original editions.)

(2) There is already a "broad consensus" in support of "orphan works" legislation. (This "consensus" is among those who want to use these works for free. Working writers who created these books and articles, and in most cases own the electronic rights to them, haven't yet had a place at the table, and aren't part of any such consensus.)

(3) Everyone else (Canada, France, the EU) is doing it, so the US should get with the program. (The Canadian law is much more limited than previous US or current EU proposals. And as noted above, the French law has been the subject of vehement protest by French and many other writers.)

(4) A digital library would be a Good Thing, so why would anyone object? (We're all for a digital library, and would happily join librarians in lobbying for the appropriation of funds to pay programmers to build it, librarians to staff it, *and* authors for the content to fill it. Librarians and salaried academics don't work for free. Why should we?)

The NWU national officers and Book Division co-chairs are meeting soon with a delegation from the American Library Association to discuss this and other issues related to library use of e-books. We hope to find ways to work together with libraries to enable writers to license our work directly to libraries, if we so choose on an "opt in" basis.

We were pleased to be able at least to attend the Berkeley symposium, but we have a lot of work to do to educate librarians, legislators, and the public about how these proposals would undermine our livelihoods.

As usual, more information is available on the NWU Book Division website.

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