Open Access News

News from the open access movement

Wednesday, April 15, 2009

Seeking "free, fair use of orphaned works" from the Google settlement

A2K and orphaned work: the rise of the Open Access Trust Inc, Open Education News, April 14, 2009.  Excerpt:

On April, 13 a group of professors lead by Charles Nesson, Lewis Hyde and Harry Lewis requested a pre-motion conference to Judge Denny Chin seeking to file a motion to intervene in the case Authors Guild v. Google.

These scholars represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The petitioners affirm that:

“...The Authors and Publishers, with Google’s consent, purport to represent a class of copyright holders that includes the owners of orphaned works, even though neither the Authors nor the Publishers are such owners.  Having turned the Authors and Publishers into legal representatives of the owners of orphaned works, Google will buy from these representatives a global license.

The proposed settlement will make Google the only company in the world with a license to use orphaned works.  No other company will be able to buy a similar license because, outside the context of the proposed class-action settlement in this case, there is no one from whom to buy such a license....The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning. Copyright does this by giving authors exclusive rights for limited times so that authors can profit from their writing by selling licenses to others.  This mechanism breaks down in the case of orphaned works because, with respect to these works, there is no one from whom to buy a license.  The public can buy no license; the author can reap no reward.  Because exclusive rights in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim....”