The U.S. Copyright Office is a generous and generally reliable font of information on a wide range of technical copyright questions. Despite that, or perhaps because of it, the Office's testimony at last week's hearing on the Google Books settlement, before the House Judiciary Committee, may have generated more heat than light. That's because the real legal issues facing Judge Chin of the New York federal district court, as he considers whether to approve the settlement, aren't about copyright at all. Instead, they concern abstruse specialties (competition law, class action procedure, etc.) in which neither the Copyright Office nor I can claim special expertise, By contrast, the most important factual question the judge confronts -- whether the settlement will add meaningfully to the public accessibility of books -- is one on which we're all entitled to our opinions. And, in the spirit of full disclosure, I should say that I have mine. Having given some advice to the National Federation of the Blind as it worked to shape the provisions on accessibility for the print-disabled that now appear in Article 7 of the proposed settlement, I can say that the settlement will be a boon to the many Americans (probably more than 30 million in all) who have difficulties processing conventional text.
So what about last week's Copyright Office testimony? It identifies three major copyright concerns about the settlement, all of which I think are misplaced. The first and most significant is the possibility that the settlement will put in place a "compulsory license" for on-line uses of out-of-print books still protected by copyright. Non-copyright geeks need to understand that in our world, these are fighting words. In fact, of course, this mechanism has a long record of success in cutting the knots that get tend to tied around issues involving copyright and new technology (e.g. the compulsory license for making cover versions of recorded songs, or the ones that have enabled cable and satellite television). But that doesn't prevent many experts (like those at the Copyright Office) from disapproving on general principles of governmental action that takes negotiating power away from classes of individual copyright owners.
The point here, however, is not that compulsory licenses actually may be less frightening than the Copyright Office testimony suggests, but that what the proposed settlement describes isn't, by any reasonable stretch, a compulsory license. Rather, it's a negotiated understanding on future licensing for particular uses that individual rightsholders (here authors and publishers) are free to avail themselves of, or not, as they choose. In that respect, it is closet relative in the menagerie of mass licensing options is probably "collective administration," a technique we know in the United States mainly as it is practiced by the musical performing rights societies (PRO's) like ASCAP and BMI - and which is employed far more widely in most other countries. Of course there are differences between classic collective administration and the scheme that would be administered by the Book Rights Registry under the proposed settlement, of which the most obvious is that while rightsholders must opt into traditional collective administration, they would have to opt out of this contemplated licensing regime. But that difference is more apparent than real. As a practical matter (in the U.S.) or a legal one (in many other countries) the only way a rightsholder can be paid for some uses is by "voluntarily" affiliating with a collective administration organization that manages this set of rights. The settlement proposes is at least as fair as that, and perhaps fairer!
The Copyright Office testimony might also be read to suggest that the licensing solution in the proposed settlement deserves special scrutiny because it is so invasive of rightsholders' markets. In fact, however, that solution has no bearing on print sales, including the emerging print-on-demand model, which is so well adapted to the exploitation of out-of-print material. And, of course, it doesn't touch the markets for adaptation, translation, excerpting, etc. On-line reading, and only on-line reading, is covered. So whatever kind of licensing this is, its reach should not be overstated. The real question, I'd suggest, isn't how the licensing regime proposed in the settlement should be labeled, but whether or not we like what it accomplishes.
Likewise, the Copyright Office's next concern may actually distract rather than focus attention where it belongs; that's the idea that the Google Books settlement would somehow preempt efforts to resolve the ongoing "orphan works" issue through new legislation. The campaign to "free" orphan works is one in which I've been actively involved for years, and in which the Copyright Office admirably has taken a leading role. Here, though, Google may be a victim of its own excellent public relations efforts. In fact, claims and counterclaims notwithstanding, there's nothing about the proposed settlement that would put more than a slight dent in the problems faced by scholars, creators and publishers who want to make new uses of old works whose current owners cannot be identified. Most orphan works, it should be emphasized, aren't out-of-print books - as to which there usually is an adequate paper trail; instead, they are unpublished manuscripts, letters and diaries housed in archival collections, historical photos and art works, and so forth. And even if the some of the old copyrighted books that consumers could read under the proposed Google Books settlement are well and truly orphaned, the settlement wouldn't authorize anyone to reprint them, or make movies based on them, or include excerpts from them in scholarly publications. Even if the settlement were approved, in other words, plenty of work would remain for orphan works campaigners to do!
Third, and finally, the Copyright Office testimony points out - accurately - that some of the U.S.'s trading partners object to the proposed settlement. There's some irony here, of course, given that (as I mentioned earlier) collective licensing is practiced far more widely outside the U.S. than it is here at home. But putting that to one side, I need to suggest that whether or not foreign nations approve of this way of organizing a portion of our domestic market in texts, it may be (strictly speaking) none of their business - especially since foreign rightsholders of out-of-print books have the option of disassociating themselves from the Book Rights Registry and making their own deals - if they can - with consumers. It's also worth remembering that this whole story began - and the settlement is the directive outgrowth of - Google's strong assertion of "fair use" in connection with the scanning of in-copyright books. So it's no wonder that our European partners (who seem to be making most of the objections), whose national laws don't include a fair use provision, would come up with other ways of dealing with issues of mass digitization - though it remains to be whether those ways will prove are as effective in promoting meaningful access as the proposed Google Print settlement has the potential to be.