What Can Google Books Do For Orphan Works?
What Can Google Books Do For Orphan Works?
What Can Google Books Do For Orphan Works?

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    As Lawrence Lessig and Jef Pearlman have discussed, the Google Books settlement—which, as a class-action lawsuit, includes all authors and publishers—may be one of the first times the use of orphan works has been authorized wholesale in America, even if only for a single entity.

    As part of the settlement, Google agrees to fund the initial startup of a Books Rights Registry (or BRR), which would help determine whether a book was in print, collect revenue from Google to distribute to rightsholders, and allow Google to check contact information for a rightsholder against information in the BRR's database. But could this Registry benefit people outside of Google and members of the suit, or help rightsholders get due compensation from groups besides Google?

    Although Google is the Registry’s main source of revenue, the BRR could easily expand its scope, independent of Google's involvement, to realize its potential as a full-fledged database for book rights. Were the Registry opened to the public, instead of only to authors and publishers as now intended, it could be used to track down and contact rightsholders, to notify interested parties if no known rightsholder exists, or even to post notices about current searches.

    The fact that Google is already able to scan and make use of any book, and can sell full online access to out-of-print books, automatically incentivizes “un-orphaning” a work. Because Google's use of the book generates profits, which are held by the BRR if unclaimed, rightsholders are encouraged to step forward and claim compensation, even in cases where there would otherwise be no reason to register with collecting agencies like the Copyright Clearance Center. Unlike ASCAP or BMI, which artists pay to join, writers are essentially paid for identifying themselves with the Registry.

    Although the BRR includes only authors of books and other text works digitized by Google, it is possible to envision similar projects for other classes of work. Even if there is no commercial archival project for smaller works like letters or photographs, libraries that are already working to preserve them could easily collaborate to produce a system where orphan works could be cataloged and identified.

    One good example of the way this project could take shape is the Library of Congress Flickr pilot project. In hopes of cataloging information about the photographs in their collection, the Library of Congress has posted two sets of photos on popular image hosting site Flickr, where users can add tags, post comments related to the picture, and submit suggestions or corrections. Although these images “have no known copyright restrictions,” a similar system could be used for orphan photographs, with the explicit intent of finding information about the ownership of a work. In Europe, this is already being done, with systems like the MILE “Orphan Database” or the Accessible Registries of Rights information and Orphan Works towards Europeana (ARROW) project.

    These projects highlight one of the most controversial aspects of orphan works legislation: The conditions that constitute a reasonably diligent search. Critics of orphan works legislation have often pointed to the possibility of users making a perfunctory, bad-faith search for works that they want to use, turning the intent of orphan works legislation into an attempt to steal copyrighted works rather than to allow the use of works that truly have no known owner. Projects like the Registry or the Orphan Database, if they continue to develop, would make this kind of copyright infringement harder, and would clear the way for actual orphan works to be identified as such. Creating forums for identifying these works benefits people who legitimately want permission to use them, and gives creators a chance to be given due credit for their work.

    The BRR does not provide a solution to the fundamental problem of orphan works: If a work has no owner, or the owner cannot be found, there is still no way for anyone but Google to use it. However, the database could provide an invaluable tool for searching for and identifying books, provided that it can be opened to everyone. Crowdsourcing can’t eliminate orphan works, but it can shed some light on the ones that might otherwise have slipped between the cracks.