Charles Nesson of Harvard Law School has proposed that the Google book settlement include funding for an Open Access Trust. Hal Abelson, Harry Lewis, and Lewis Hyde have joined the proposal. Excerpt:
One wonderful promise of the Google Book Settlement is that it will bring back into circulation all the out-of-print books currently under copyright. An important subset of these works are "orphaned," meaning that their legal owners have abandoned them, died, or simply cannot be located. These works have value, and renewed public access to them will create a stream of revenue.
To whom should that revenue be dedicated?
We argue that truly orphaned works should be thought of as a part of the public domain, and that any income generated from their renewed circulation should therefore be dedicated to the public good. Moreover, as this income has been derived from renewed access to printed books, the public good in this case can well be thought of as those institutions that are themselves dedicated to access to knowledge.
We therefore propose the creation of an Open Access Trust, funded by the revenue generated by unclaimed orphaned works.
Trusts are centuries-old institutions devised to hold and manage property for beneficiaries. The essence of a trust is a fiduciary relationship. Neither trusts nor their trustees may act in their own self-interest; they're legally obligated to act solely on behalf of beneficiaries. These rules are enforceable by the courts.
Imagine a trust dedicated to access to knowledge. The beneficiaries of such a trust would be all living citizens, globally, and future generations. The trustees, in turn, would have as their primary duty the creation, encouragement, and maintenance of institutions that serve the goal of open access, worldwide....
This is an excellent idea. It needn't rest solely on the argument that orphaned works are part of the public domain. It could rest, instead or in addition, on the argument that the Google book settlement will shrink the scope of fair use and shrink the odds that competition will lower the price or improve the terms under which the public will have access to digitized orphan works. Nesson expands upon the orphan-works argument in this blog comment.
The OAT has already been incorporated as a Massachusetts charitable corporation.
Housekeeping note: When the proposed Google book settlement was new, I blogged nearly all the news and comment about it I could find. But as time passed, and the volume of comments kept growing, I had to cut back. Now I only blog about it when there's a strong OA connection, as there is here. However, I still tag settlement-related news and comment for the OA tracking project (using the tag, oa.google.settlement), if you want to follow them that way.
Peter Suber at 4/24/2009 01:27:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.