Some of these are simply mistaken ideas of what copyright is and does. Most of them naturally arise from the very complicated nature of the issues. All have been perpetuated by inaccurate, confusing, tendentious language.
I’ll cite these “unfacts” as I come upon them and have time to discuss them. I welcome corrections of factual mistakes and will revise to include them. My opinions are just that, my opinions.
1. Unfact: Everybody who opposed the Google Book Settlement hates Google and everything it stands for and wants to destroy the Evil Corporation root and branch and go back to carving runes on rocks.
Fact: Most of us who opposed the Settlement use Google all the time. Whatever misgivings we may have about corporate control of information, Google’s performance in offering access to information without strings attached has so far been admirable and immensely impressive. And most of us strongly favor the idea of a free digital library.
The problem is that Google saw fit to defy copyright law by digitalizing works without permission from the copyright holders.
Discussion: I don’t understand why Google did what they did. If they’d just done it right – followed their own motto “Don’t be evil!”
I know… the Library of Alexandria consisted mostly of stolen books taken by force from the libraries of subject cities. But in this case there was no need for theft. Many authors would gladly give permission for their out-of-print books to be included in a great free digital library (especially if it paid usage royalties, as European public libraries do). The harm came when Google began digitalizing works without permission, and thus attacking both copyright and moral right.
2. Unfact: Copyright is a selfish grab by rich, famous authors so they get to make all the profit out of their books.
Fact: Copyright is a limited and carefully designed law to protect authors from poverty. It allows authors control over the rights in their books, so that they, like any worker, can make what profit they can from their work.
It’s called “copy” right because it involves, literally, the right to make copies of the work.
An author contracting with a publisher sells the publisher a limited piece of her copyright: that is, the right to make copies (i.e., publish the work in a certain form for a certain period of time) in exchange for a share (usually 15% or less) of the publisher’s profits.
Discussion: Copyright has existed only since the 18th century. Till then, writers mostly lived by finding and sucking up to a rich patron. Since then, writers have been able to make an independent living… well, dependent on the whims of publishers — but after all, publishers and writers have pretty much the same stakes in the very chancy game of making books.
Only ignorance or irresponsibility dismiss copyright as “irrelevant to the Digital Age.” It’s needed more than ever, to protect authors from trying to live by selling themselves to corporations or selling their text space to advertisers. Copyright law has to be extended and rewritten to work with the new technologies of publishing. The notion that it’s unnecessary makes it all the harder to get that necessary work done.
A lot of people quote Stu Brand: “Information wants to be free.” I wonder why they hardly ever quote the other half of Stu’s sentence: “It also wants to be paid for.”
Information can be free to the user, the reader, and pay a living wage to the originator, the author: Think of the free Public Library.
This balance can extend to the Internet, if we can rewrite copyright law to cover the new technologies.
Sneers and sloganeering ain’t going to butter the beans. It will take hard and careful work. Can you imagine trying to explain to the current Speaker of the House how it might be done and why it’s important to do it?
3. Unfact: Out-of-print and out-of-copyright are the same thing. “Orphaned” books are out of print and out of copyright.
Fact: A book that is “out of print” is one which no publisher currently claims to have in print and available.
A book that is “out of copyright” is one whose copyright has expired. It is said to be “in common domain.” No one can own the rights — anyone can copy it, reprint it, etc. at will.
Out of print and out of copyright are entirely different things. Most books go out of print within a year or two, but their copyright goes on for decades.
An “orphaned” book means a copyrighted book whose copyright owner — author, or estate, or trust, or representative — can’t be located.
An orphaned book is usually out of print, but it is NOT out of copyright. It’s “orphaned” because the copyright owner can’t be located to send royalties to, or ask for permission to excerpt, copy, reprint, digitalize, etc.
Discussion: “Orphaned” books were always a problem in publishing, but didn’t become a huge problem until the recent grotesque extension of the period of copyright (called the Mickey Mouse Act because a lobby led by Disney Corp. strongarmed it through Congress.)
Copyright used to be 28 years, plus a 28-year extension at request. It is now the lifetime of the author plus 70 years (that could be 120 years!) — an indefensible crippling of the intention of the Copyright Act, which was to give living authors the rights and profits they’d earned, and then let the book go into “public domain” — become free to everybody.
Under Mickey Mouse, a huge number of books are going to end up orphaned — trapped in useless copyright.
It is (God help us!) up to Congress, with the guidance of the Justice Department, to figure out how “orphaned” books should be handled. The best first step would be to knock down the Mickey Mouse Act and return to a rational duration of copyright. If this is unthinkable, perhaps the Copyright Office should be enabled to declare a copyright void if the copyright owner cannot be found — after a bona-fide search plus a period of say two years.
It’s a real problem. But it has nothing to do with Google’s illegally digitalizing books without getting permission from the copyright owners.
The use of “orphaned” as if it meant “uncopyrighted” is an obstinate, unfortunate confusion of terms, clouding the whole debate: and many of those who have used it that way surely know better.
And the sneakiest gambit is that of talking as if only orphaned books are being illegally digitalized. All the time the Settlement has been in the courts, Google has been blithely going ahead digitalizing any book it wanted without obtaining permission, let alone contractual terms. (I can attest to this, since they have thus pirated several of my books, with no attempt whatever to contact the publishers, my agent, or myself — none of whom are exactly hard to locate.)
Such methodical theft looks like more than corporate indifference to the law. It looks like a deliberate effort to destroy copyright. In other words, the corporation would like to do away with the concept of workers getting a fair share of the profit from their work.
That would “be good” for the corporation. Not good for the worker, the writer — or for readers, or for anybody else.
Ursula K. Le Guin is a founding member of Book View Cafe. Her most recent book is Out Here: Poems and Images from Steens Mountain Country, co-authored with photographer Roger Dorband.
She contributed an original poem, “In England in the Fifties,” to Book View Cafe’s anthology Breaking Waves, which benefits the Gulf Coast Oil Spill Fund.