The Aristocracy of Copyright

One of the most interesting concepts today is that of “Intellectual Property”. I don’t mean patents and trademarks, but specifically the issue with Copyright. I recently read a Lewis Hyde article in the New York Times about the nature of Orphaned works (works who’s authors cannot be located or contacted, or for which an author cannot be discovered), and how Google is being set up as the defacto owner of all orphaned works it can scan. That’s not the intended result, at least publically, but it’s what’s going to happen.

When Copyright was originally established in 1710 in a document called the Statute of Anne, it declared that authors owned their works for 28 years. This was a big deal, because in the past patrons had owned the works created by authors. Prior to the Statute, authors’ works were purchased from the Stationer’s Company, after which time they were granted a perpetual monopoly on the publishing of the work with no obligation to pay the author. Authors were also forbidden from gaining membership in the Stationer’s Company, making it effectively illegal to self-publish. The original intellectual work was effectively property, and the right to publish it could be bought, transferred, and sold.

The importance of the Statute was that it acknowledged that the written works should be protected for a time, to allow the author and their publisher to profit from them in recognition of the work’s value to society. It also decided (for the first time, really) that such a monopoly should be finite, after which time the works could be published by anyone who wished to, because they become a part of our social heritage.

The term of copyright has been extended so greatly over the years, in an attempt by publishers and wealthy authors to increase their power, that it is now (from a legal standpoint) a minimum of 95 years from publish or 120 years from creation. The exact legal duration is defined as “Life of the author + 70 years until year-end” according to Title 17 of the US Code, sections 302 and 305.

Now what does this all have to do with Google books? Well, in a class-action settlement (which everyone who has ever written or published a work is named), Google will be allowed to monetize all works (orphaned or not) for the duration of their copyright period. Any fees associated with this (from advertising or the renting to libraries) will be placed in a steward account (under the Book Rights Registry). If no author has claimed ownership of the work in five years, the money will be re-distributed to authors represented by the Book Rights Registry. This “special deal” Google is striking is a huge problem though, as Hyde points out:

The only way a potential competitor could avoid the threat of statutory damages would be to do what Google did: scan lots of books, attract plaintiffs willing to form a class with an “opt out” feature, negotiate a settlement and get it approved by a judge. Even for those with time and money to spare, that promises to be an insurmountable barrier to entry.

Google will be the new Stationer’s Company – the only one with the right and privilege to electronically monetize and distribute orphaned works. And Google will be able to monetize however they see fit, with all the profits going to line the pockets of authors and administrators who had nothing to do with a work’s creation.

And just how many of the 7 million books Google has already scanned fall into this orphaned category? Roughly 70%, with every reason for Google to try and find more. Oh, and it isn’t the responsibility of the Book Rights Registry to find the authors of orphaned works. In fact, it’s the author’s responsibility, a process that will no doubt be time consuming and obtuse , since it benefits them to NOT find the authors.

Read the Statute of Anne

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