[Web4lib] Libraries, OCA, Google make first page of the NYT

[gagnew at rci.rutgers.edu]

The orphan works bill is still in limbo, but I believe the provisions were
that an author/rights holder either can't be determined or can't be
located.  Out of print and orphan aren't synonymous.  In fact, since a
work was published, there is some level of research that can be undertaken
to locate the rights holder.  Orphan works, if and when it passes, will
require demonstrated "good faith" efforts to locate the rights holder and
obtain permission to distribute.  I don't think IA could make a case for
"orphan works" and in fact might muddy the waters for this important law,
which is already a law of concern for commercial publishers.   With a
known author and publisher, there is a paper trail that must be explored
to determine that no creator/rights holder, or his assign, currently
exists to authorize use of the copyright-protected resource.

I'm interested to see if fair use is a legitimate claim for the
distributor of a resource rather than the user.  Distribution is of course
a use, but it isn't a use that is explicitly or even implicitly covered by
the four factors.   I'm not aware of case law that has supported the
distribution of a resource to promote its availability for fair use as a
fair use in and of itself.  The "xerox notice" is intended to inform the
end user so that he makes use of a resource in a way that conforms to fair
use, not to support fair use actions of the library.  In U.S. law and in
other "fair dealing" exemptions, most notably the UK, the library is seen
very much as the intermediary that enables the user to make fair use of a
resource, and not a resource user exercising fair use in its own right.

I know that a lot of libraries, including the Library of Congress,
reference fair use as a justification for making resources available in
digital collections, particularly primary resources with no obvious
commercial value and no discoverable creator or rights holder, such as the
many historical photographs of unknown origin that a library or archive
might make available on the Web.  I have a lot of questions about the use
of the "fair use" exemption as a justification. I think the Orphan Works
Act, if it gets passed, or Section 108(h) which makes resources in the
last twenty years of copyright protection available for reproduction and
distribution under certain conditions, would be more applicable.  I think
that 108(h) does require that the work not be available at a fair price or
still commercially exploitable and I do feel only the rights holder can
make that assessment.  With an identifiafle creator and publisher, I think
IA will have a difficult time with either a "fair use" or an "orphan
works" justification.  I think they would be better to look at 108(h)
which is intended to increase the public domain, as a better justification
and work with older materials in copyright.  Section 108(h) is the most
recent 108 provision and it would be interesting to see IA push the
envelope there.  I think any use of orphan works, without doing the
research required to declare an orphan work, might hurt OWA's chances to
pass, if it isn't moribund already.

Grace


>  From what I heard (when this was discussed the next day) was that they
> haven't entirely figured out what to do about the copyright issue, but
> they are definitely NOT likely to impose actual DRM on the files. There
> was something said about including a notice, something like the "Xerox
> machine" notice, that alerts users to the fact that the item may be
> under copyright. I also may have heard (or I could be mixing things up)
> that they'll focus on out-of-print items. This makes me think that it'll
>   run into the "orphan works" issue, which has been much discussed but
> not resolved.
>
> kc
>
> B.G. Sloan wrote:
>>
>>   I thought the final paragraph of the article was very interesting:
>>
>>   "On Wednesday the Internet Archive announced, together with the Boston
>> Public Library and the library of the Marine Biological Laboratory and
>> Woods Hole Oceanographic Institution, that it would start scanning
>> out-of-print but in-copyright works to be distributed through a
>> digital interlibrary loan system."
>>
>>   I couldn't find a mention on the OCA web site about how they are
>> tackling the copyright issue when it comes to scaning in-copyright
>> out-of-print books?
>>
>>   Bernie Sloan
>>
>> "K.G. Schneider" <kgs at bluehighways.com> wrote:
>>   http://www.nytimes.com/2007/10/22/technology/22library.html
>>
>> Wow! (I blogged it, too)
>>
>> K.G. Schneider
>> Free Range Librarian
>> AIM/Email: kgs at freerangelibrarian.com
>> http://freerangelibrarian.com
>>
>> _______________________________________________
>> Web4lib mailing list
>> Web4lib at webjunction.org
>> http://lists.webjunction.org/web4lib/
>>
>>
>>  __________________________________________________
>> Do You Yahoo!?
>> Tired of spam?  Yahoo! Mail has the best spam protection around
>> http://mail.yahoo.com
>> _______________________________________________
>> Web4lib mailing list
>> Web4lib at webjunction.org
>> http://lists.webjunction.org/web4lib/
>>
>>
>
> --
> -----------------------------------
> Karen Coyle / Digital Library Consultant
> kcoyle at kcoyle.net http://www.kcoyle.net
> ph.: 510-540-7596   skype: kcoylenet
> fx.: 510-848-3913
> mo.: 510-435-8234
> ------------------------------------
> _______________________________________________
> Web4lib mailing list
> Web4lib at webjunction.org
> http://lists.webjunction.org/web4lib/
>