The Author’s Guild has become quite litigious in recent years. The Guild’s lawsuit against Google for its Google Books project continues, and will go to trial sometime next year. Meanwhile, the Guild, along with Australian and Canadian authors’ organizations and eight individual authors, has filed another high-profile lawsuit, this time against the HathiTrust, a partnership of major research institutions and libraries. The suit, filed in New York federal court in September, alleges that the Hathi Trust’s digitization, archiving, and copying of copyrighted works (mostly scanned originally by Google and sent to HathiTrust libraries as part of the Google Books project) isn’t fair use, and therefore constitutes copyright infringement.
In addition – and perhaps the real target of the lawsuit – the plaintiffs allege that the HathiTrust’s Orphan Works Project also violates copyright law. That project investigates author and publisher information available about a book, and if the author cannot be located and the book is unavailable, considers it a candidate for digital inclusion in the library, making it available to library patrons without charge.
If the Guild had sued only to stop the Orphan Works Project, the federal court could decide that the Guild lacked legal “standing” to bring the lawsuit, because none of the Guild members are authors of orphan works and thus would be harmed by the project. By also alleging that digitization of non-orphan works was infringing (ala the Google Books lawsuit), the plaintiffs hope to avoid the standing issue.
So what exactly are orphan works? Simply, any work whose copyright owner cannot be located – often because the author has died and his heirs can’t be found, or the author has disappeared. Under current U.S. law, orphan works may not be used by anyone because, whether the author is known or not, the works still are protected by copyright. Legislation was introduced in Congress in 2008 that, if it had passed, would have allowed limited use in certain situations. (Don’t confuse orphan works with work in the public domain, which are those whose copyright has expired, or were not subject to copyright in the first place, such as certain government publications).
Orphan works have multiplied dramatically in recent years because of the increase in copyright terms (from 26 years in most of the 20th century, to the current term of life plus 70 years) and because the 1976 Copyright Act provided that copyright is automatic upon creation, without the need to register. The problem of orphan works is especially acute for documentarian film makers, librarians, and archivists who are barred from using otherwise useful manuscripts, books, film footage, and audio recordings — thus, the HathiTrust’s Orphan Book project.
Some commentators view the Project as a deliberate attempt by the libraries to test the boundaries of copyright law, especially in light of the embryonic Digital Public Library of America (http://cyber.law.harvard.edu/dpla/Main_Page). If so, the Guild’s lawsuit could be the first salvo in a battle between authors and libraries.
© 2011 Daniel Steven