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This may be the top question I get when I work with library digitization projects. Recently, a seminar was convened to address the broader issue:

Undue Diligence: Seeking Low-risk Strategies for Making Collections of Unpublished Materials More Accessible

OCLC, a nonprofit membership organization of computer, library service and research organizations, organized the seminar and coordinated the effort that resulted in a one page document to help users with a practical approach to selecting collections, making decisions, seeking permissions, recording outcomes, establishing policy and working with future donors: Well-intentioned practice for putting digitized collections of unpublished materials online.

Fairly Used sits down with Ricky Erway and Merrilee Proffitt, Senior Program Officers, OCLC Research to learn more.

Minow: What prompted you to develop the Well-Intentioned Practice Document for libraries and archives?

Proffitt: This is a follow-up to a previous activity we did with institutions to encourage them to digitize more from special collections, and do it at scale. Our original exercise (which resulted in a paper called Shifting Gears) was aimed at getting institutions to refocus from digitizing a few collection high points, to digitizing entire collections, and to do it at scale. To focus more on access and less on preservation. For those institutions who held more modern collections, concern about rights was big stumbling block.

Erway: We had ruled rights issues off-topic for that activity, but now it was time to look at the issue of rights – and to do it from a risk management perspective. I’d like to be clear that the Well-intentioned Practice document was drafted with the help of an advisory group and the speakers of the event you mentioned and had lots of review and reworking by others during and after the event. It is not an OCLC document. It is of, by, and for the community.

Minow: Is there a connection with the Society of American Archivists Orphan Works: Statement of Best Practices? See our interview with Heather Briston on that statement.

Proffitt: OCLC Research and the RLG Partnership actually funded the meetings that led up to the publication of that document, and I was privileged to participate in the discussion and also played a small role in writing the document. I think the documents are very complementary. From my viewpoint, the well intentioned practices can be used at a higher level, to help rule collections in and out of scope for digitization.

Erway: There is still an important role for guidelines (how to determine if something is still in copyright, how to balance the fair use factors, how to locate rights holders…) They should be considered on a case by case basis. It all depends on the nature of the collection and the perceived risk.

Minow: In the suggestions going forward, in working with donors, institutions are suggested to include in the deed of gift that: if content is in the public domain, ensure that no restrictions are placed if content is in the public domain, ensure that no restrictions are placed on it; if donor retains the rights, seek license to digitize the materials for unrestricted access; ensure that nothing will limit or restrict fair use rights . This seems very helpful. Do you have a sense that this is becoming standard in deeds of gift today?

Proffitt: With archival backlogs a growing concern, I think many institutions are rethinking the way they appraise and accession collections, and there is a growing interest in ensuring that collections we do take in can be put to as many uses as possible. Working more closely with donors is a growing trend, I’m happy to say, and I think that’s a good thing.

Minow: Do you think in general that the library and archive community is overly cautious in making their unpublished works available online? Is the intent of this document to help increase the efforts to share works with the public?

Proffitt: I think there are many cases were caution is appropriate. But it’s also important to take risks on behalf of serving scholarship, which is a core mission for most of our institutions. Going back to Shifting Gears, we want the community to find ways to digitize more collections. Assessing risk and consequences for collections that may have items in copyright is part of the toolkit that reasonable archivists should have at their disposal. In the end it comes down to making sound judgments based on the information at hand and I think that librarians and archivists are very capable of making judgments that will benefit scholars and not get their institutions into hot water.

Erway: Sometimes we forget that it is Counsel’s job to assess risk and advise us, but it is our job to make the ultimate decision. We’re encouraging decisions that balance risk with mission.

Minow: Are you aware of any institutions that have been threatened with a lawsuit or asked to take down works that they have digitized?

Erway: In almost any crowd, if you ask for examples of institutions that have been sued for making something accessible online, you are greeted with silence. Or an example that’s not quite on topic. Or a story about a threat that was amicably resolved. Mostly you hear about the effectiveness of gentle wording and generous take-down policies! Or about the person was so thrilled to see his stuff on your site. So if no one is being sued, why do we lose so much sleep over this? Let’s do it with good intentions, but not shirk our responsibilities as caretakers of these collections.

Minow: Where can readers get more information about these issues? This is a softball for you to add the link to the wonderful materials you made available from the seminar!

The Well-Intentioned Practice document is at
The information about the Undue Diligence event is at
New developments will be tracked on this page

[*] Ricky Erway and Merrliee Proffitt are both Senior Program Officers with OCLC Research.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Amy Blum

Amy Blum

Christine Borgman

Christine Borgman


Minow: What precipitated the new UCLA principles on the use of streaming videos and other educational content?

Borgman: UCLA, being near Hollywood, always has received extra scrutiny of our use of intellectual property. We are conscientious in our use of IP, in following applicable laws, and in educating our faculty and students about appropriate and inappropriate uses of educational and scholarly content. IP issues that rise to a level of campus concern are referred to the UCLA Information Technology Planning Board or the UCLA Advisory Board on Privacy and Data Protection, depending upon the specifics.

Our statement of principles was precipitated by a copyright dispute with AIME about our practices in streaming video for our courses. In considering UCLA’s response, our Executive Vice Chancellor and Provost, Scott Waugh, asked the ITPB and the Academic Senate to advise him and the Chancellor, Gene Block, about the educational principles of the case.

Minow: Can you describe the educational philosophy that guided the development of these principles?

Borgman: UCLA has embraced the concept of cyberlearning and the virtual classroom. University instruction has long ceased to be bounded by the four walls of a physical classroom. Students and instructors interact with each other, and with learning resources, on a 24/7 basis. The virtual classroom is the UCLA classroom of today. We are by no means alone in embracing this approach to learning. The pedagogical opportunities made possible by Internet technologies, distributed access, and new forms of course content are now critical components of higher education.

Educational content takes many forms, not only texts but also audio, moving images, and datasets. The virtual classroom and its capabilities directly benefit the learning experience of students by providing access to instructional materials at flexible times that ensure maximum productivity, when students best can contemplate and respond to the content.

Minow: Did you rely mainly on the TEACH Act or on Fair Use?

Blum: There are three provisions of the Copyright Act that support UCLA’s use; (1) fair use, (2) face-to-face teaching, and (3) the TEACH Act. Because these provisions provide limitations on copyrights, UCLA has the right to use content for its educational, non-commercial purposes consistent with each of these provisions. Streaming the content in the virtual classroom only to those students registered and participating in the specific course is integral to the pedagogy of the teaching environment and serves the very purpose that each of the provisions of the Copyright Act were enacted. This time-shifting and space-shifting has been deemed by the United States Supreme Court and the Ninth Circuit Court of Appeals, respectively, as well within the use permitted by the Copyright Act.

Minow: Does the possibility of sovereign immunity in case of a lawsuit enter into your analysis?

Blum: While the University generally does enjoy sovereign immunity that prevents liability for damages, I am not at liberty to discuss any specific legal analysis that may have been considered.

Minow: Do you know if any other universities are likely to adopt similar principles? How will it help the academic community at large if these principles are widely adopted?

Blum: I know that there has been interest in this issue in the Higher Education community. UCLA has decided that it is important to take a leadership position because of the value of ensuring that our students and faculty have the necessary tools and resources, including applicable technology, to provide the exceptional educational experience expected at our campus. It will be an entirely separate decision for any other institution as to its assessment of how the issue affects its mission.

[*] Christine Borgman is Professor and Presidential Chair in Information Studies at UCLA, and serves as chair of the UCLA Information Technology Planning Board.

Amy Blum is Senior Campus Counsel at UCLA.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Copyright for Librarians is a free course designed to inform librarians about copyright law, especially the aspects that most affect libraries. It has current information that has been field tested with international librarians on the following topics: Copyright and the Public Domain, The International Framework, The Scope of Copyright Law, Rights, Exceptions, and Limitations, Managing Rights, Creative Approaches and Alternatives, Enforcement, Traditional Knowledge, and Activism.

It is a joint project of the Berkman Center for Internet & Society and Electronic Information for Libraries (eIFL), a consortium of libraries from 50 countries in Africa, Asia and Europe.

Minow: How did the copyright for librarians project start?

Dulong de Rosnay: came up with the project and contacted the Berkman Center to develop the course. The purpose was not only to teach librarians about copyright law in general, but also to raise awareness about problems that copyright create for librarians, especially in transition and developing countries, and about possible ways for librarians to change it at the national and international levels.

We started by collecting user requirements and expert advice to define the content focus and the distance learning methodology. Developing a course which might be self-taught raises design challenges besides the difficulties of providing an international overview of copyright which varies among countries.

A large team drafted and edited the course material, which was tested at two occasions by librarians: first, during a training at the Mortenson Center for International Library Programs at the Library of the University of Illinois at Urbana-Champaign and then during a seminar at the East African School of Library and Information Science at the Makarere University in Uganda.

Minow: What exactly is the “Rotisserie”? Is that a model you found elsewhere?

Dulong de Rosnay: The Rotisserie is a distance learning platform which was developed at the Berkman Center and used to accompany many courses. It allows educators to send assignments to a group of enrolled participants, who are then prompted to comment upon their peers’ answers. It is a useful complement to the course material, as it can host group discussions following the individual study of the modules. However, the course is not linked to the Rotisserie and can be implemented on any platform, or used without additional technology.

Minow: How do you plan to keep the course up-to-date?

Dulong de Rosnay: The sustainability of the project is indeed very important. It is expected that users will provide feedback on the course and maybe translate, adapt and develop the material which is licensed under a Creative Commons Attribution license allowing anyone to reuse it. At the end of each module, we include participatory homework based on the librarians’ local experiences and current legislation for their countries. The goal is to use this material to develop future versions of the course. An additional phase of the project would most likely be necessary to edit contributions and update the material.

[*] Dr. Melanie Dulong de Rosnay is a researcher in law and information science working on open licencing. A fellow at Science Commons when working on the Copyright for Librarians project at the Berkman Center, she co-founded Creative Commons France.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Minow: Why did Stanford negotiate a revised agreement?

Calter: Like the University of Michigan, Stanford renegotiated its contract with Google to bring the arrangement in line with the Fully Participating Libraries standard set out in the Settlement Agreement

Minow: What are the key changes? Are they the same as U Michigan (and/or any others?)

Calter: Many of the key changes are indeed similar to UMichigan’s, as the Fully Participating Library agreement is standard.

Minow: Will Stanford give more works to Google to digitize? Make the works more available?

Calter: Stanford has always hoped to digitize as much of its collection as possible. The revised agreement reaffirms that commitment. And the availability of the materials is governed by copyright restrictions, rather than Stanford’s. We strive to make our collection as accessible as possible, particularly for our faculty and staff.

Minow: Is there a copy of the agreement available to view?

Calter: No. Stanford is a private institution, and our contract with Google is private as well.

* Mimi Calter is Assistant University Librarian & Chief of Staff for Stanford University Libraries & Academic Information Resources.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Peter Hirtle has issued his 2010 update to his invaluable Copyright Term and the Public Domain in the United States chart.

Minow: This chart was useful when it first arrived on the scene many years ago, but now it is an essential document for all libraries and others with projects that need to ascertain the copyright status of older works. In recent years, you’ve added sound recordings and architectural works. The true labor of love, is works published outside the United States. Tell us what you added this year.

Hirtle: I’ve added the list of countries that have joined Berne or WTO after 1 January 1996. I’ve also tweaked the language of the Laos exceptions, though I am still unsure about this and welcome readers’ comments. Here’s the issue: Laos joined the UCC in 1954. Works published after that date that complied with US formalities would receive protection. The new Laotian government repudiated the constitution and the previous government in 1974, but I assume that once a work got protection in the US, it continued to have that protection; it was not necessary for the treaty to remain in force. And I don’t think that the Laotian government has ever formally renounced its membership in the UCC, but has just ignored it. So I don’t know the status of Laotian works after 1974. And as far as I can tell, Laos is the only country whose only copyright regime is still the UCC.

Minow: Whew.

Hirtle: The other changes are minor. I changed the title of the US section to include registered works as well a published, but this still isn’t quite right (since a foreign work could have been registered, entered the public domain through non-renewal, and then had its copyright restored in 1996).

At the recommendation of a user, I added a reference to US government works at the end of that section. (It had been in a footnote.) In footnote 1, we added a link to Copyright and Cultural Institutions, which provides more background on the categories in the chart. Finally, we have changed the Creative Commons license on the chart from BY-NC to simply BY. I hope that this makes it more useful.

Minow: Do you ever regret getting started on this?

Hirtle: Not really. My one worry is that the chart may contribute to an illusion of certainty when ambiguity is the reality. An archives, for example, might assume that a manuscript letter in its holdings is an unpublished work, when in reality it had been published with the authority of the copyright owner years before and must be treated as a publication. A museum might blithely assume that works created before 1923 are in the public domain, whereas either the works were unpublished (and hence the 1923 date does not apply), or were published (and therefore needed to follow the rules on notice, renewal, etc.). The complexities in the chart are symptomatic of a failed copyright system, but I hold out little hope that it will change.

* Peter B. Hirtle is a Senior Policy Advisor in the Cornell University Library and member of the Stanford Copyright & Fair Use Advisory Board.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Minow: Stanford is partnering with Google to make student dissertations available worldwide. What does Google bring to the table that simply using the Stanford Digital Repository on its own does not?

Calter: Google provides broad distribution. We’ll be using the Stanford Digital Repository for preservation, and we’ll be making the dissertations available through our online catalog, but working with Google dramatically increases the visibility of the materials. We think that visibility is an advantage for our students.

In the long run, we hope that other schools will join us in contributing their dissertations to Google, and that “Google Dissertations” will become the go-to resource for dissertations, theses and similar materials.

Minow: What is Stanford’s policy on copyright and student dissertations? Are students required to give permission to the University to copy and distribute their dissertations?

Calter: Per Section 5.2 of the Research Policy Handbook (, Stanford’s students retain copyright in works they create as part of their coursework, including dissertations. Therefore, Stanford does need the students’ permission to preserve and distribute those dissertations. As part of the standard submission process, students grant Stanford a license to do so. It is a license only, and students retain full copyright in their work.

The submission process also allows students to apply a Creative Commons license to their work. We hope that this addition will raise awareness of the Creative Commons option, and further increase the accessibility of these materials.

Minow: I understand that this move away from ProQuest means that Stanford student work will no longer be included in Dissertation Abstracts unless the student makes an affirmative effort to submit to ProQuest. What are the implications for the broader research world of such a step?

Calter: It is a concern, but our sense is that the wide availability and visibility of the dissertations through the Stanford catalog and Google will more than compensate for the lack of a listing in Dissertation Abstracts.

Minow: Google has been harvesting electronic dissertations for several years. How does Stanford’s submission of the dissertations differ from Google’s past practices?

Calter: The submission process that Stanford is using is similar to the one that publishers are using for Google Book Search. So we’ll be submitting metadata along with the dissertation files, and expect to have more descriptive listings than just titles.

* Mimi Calter is Assistant University Librarian & Chief of Staff for Stanford University Libraries & Academic Information Resources.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Minow: What sparked you to write this book?

Hirtle: I used to be Director of the Cornell Institute for Digital Collections, where I led a number of library and museum digitization projects. With all of the projects, much of my time was spent worrying about what was legal and/or acceptable for us to do. Based on my experiences and what I learned about copyright, I started offering workshops on copyright and digitization. When I read Hudson and Kenyon’s Australian manual on the topic, I realized that this was exactly the sort of information that I wished I had at my fingertips when I started out. Their manual was written to assist understanding and compliance with copyright law. It addresses the basics of copyright law, the exclusive rights of the copyright owner, and the major exemptions used by cultural heritage institutions. I realized that an American version would be of great use, and fortunately they agreed that we could collaborate on such a volume.

Minow: If you could condense your book to one paragraph, what would it say?

Copyright and Cultural Institutions: Guidelines for U.S. Libraries, Archives, and Museums Hirtle: The development of new digital technologies has led to fundamental changes in the ways that cultural institutions fulfill their public missions of access, preservation, research, and education. Many institutions are developing publicly accessible Web sites that allow users to visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. It is imperative, therefore, that staff in libraries, archives, and museums understand fundamental copyright principles and how institutional procedures can be affected by the law. Copyright and Cultural Institutions was written to further understanding and compliance with copyright law.

Minow: What were the challenges or surprises you found when writing it?

Hirtle: I knew that very few of the things that cultural institutions want to do with new technologies are explicitly authorized in copyright law. What I didn’t realize is how many non-digital practices are similarly unauthorized. Cultural institutions have unknowingly engaged in a string of behaviors that in theory place them at some risk. This has not been a problem, however, because very, very few institutions have ever been sued – and many of the activities that they have undertaken may be perfectly legal, even if they are not explicitly recognized in the law. These cultural institutions have been engaged in a kind of intuitive risk analysis, and have assumed (correctly) that their risks are low. I hope the book will help institutions engage in an informed risk analysis that leads them to conclude that the public interest, as well as the many protections the law affords them, warrants providing greater access to their collections.

Minow: When will it be available?

Hirtle: Now! The volume is available for free download from SSRN and Cornell University Library’s eCommons. In addition, print copies are available for sale from We are hoping that enough individuals and institutions will purchase the print copy that we can recover the out-of-pocket production expenses and justify making a copy available for free on the web.

* Peter B. Hirtle is a Senior Policy Advisor in the Cornell University Library and member of the Stanford Copyright & Fair Use Advisory Board.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Minow: In that Oxford University Press is a publisher with a mission to expand access to academic knowledge, it has taken a particularly nuanced approach to the Google Books settlement proposal. Could you describe the issues that tipped you to supporting the settlement?

Barton: I would break this into two parts–substantively what inclined us to support the settlement; and what prompted us to voice our support publicly, at the point that we did so.

The settlement was not an easy document to understand, and it took a group of us, working for some months, to form a considered view of it. When we did understand it, what made it in the end straightforward for us to support the settlement was the almost unimaginable access that it will enable to millions of works that were lost to readers and scholars and which, without the settlement, were likely to remain so. We had been working on a project at OUP to bring our own out-of-print books back to life, and we were aware of the very considerable difficulties and costs involved in doing so. From these efforts at digitizing our backlist, we saw that only an entity such as Google would take on the risks and make the investments needed to bring these millions of books back to life. This is because Google wants to make its search engine as useful as possible, in order to secure advertising revenues, and so it can justify the major costs: publishers cannot make anything like the same level of return on selling their out-of-print backlist as Google can in securing revenues as a result of returning the best quality searches. At Oxford it was our mission–one of supporting and disseminating scholarship and education, rather than securing a commercial return–which was the primary driver in our plan to develop a backlist archive. Many other publishers do not have that same mission, and among those who do, few could afford the substantial investment of time and money required.

So the settlement’s promise of enabling students, scholars and readers access to these millions of works is the primary issue that tipped OUP into supporting the settlement.

Of course there are elements of the settlement about which we are less positive, and I think it would have been (and would still be) helpful if those who negotiated the settlement were to come out in advance of the court date with some changes to address sensible reservations which have been expressed.

We decided that we should publicly voice our support for a number of reasons, including what I view as poor branding of this settlement as “the Google settlement.” It is not surprising that the public has been especially cautious–skeptical even–in considering something that sounds as if it is just for the benefit of a company as powerful as Google. But this isn’t just Google’s settlement; Google is a party to the settlement, for sure, but it is equally a settlement which is in the interests of publishers, authors, libraries, and, I believe, the general public. We also felt that while the groups that had negotiated the settlement had done a remarkable job in negotiating it, they were falling short in explaining and promoting it. Those who had negotiated the deal didn’t seem to be coming forward to correct misunderstandings and support it. I can appreciate that, after having slogged through two and a half years of negotiation, they must have relished the prospect of putting it to the side even for a short while. But the vacuum created was filled by outspoken critics, some of whom seemed to have vested interests in scuttling the settlement. Underlying a growing chorus of criticism, we heard repeated misunderstandings about the settlement, as well as a visceral fear of something that seemed to be for Google. But, as I mention above, the settlement was negotiated by authors, publishers and libraries too, and it promises tangible and significant benefits for these groups as well.

I’m not one who eagerly sticks his head above the parapet, but I was quite concerned that, if people did not step forward to voice support for the settlement, it might fail. And that would serve no one except Google’s competitors. Hence, my article in The Chronicle of Higher Education.

Minow: You wrote that making orphan works “available again is a clear public good. Google’s having exclusive rights to use them, as enshrined in the current settlement, however, is not.” Is the Justice Dept right to be investigating antitrust issues?

Barton: I don’t profess to have special antitrust expertise, so I can’t say whether in fact there is a genuine antitrust issue here. But it certainly makes sense that the antitrust authorities should, as they are doing, at least explore whether there is any basis to the antitrust concerns that have been voiced.

That said, I don’t share the concerns that I’ve heard about how the institutional database’s subscription prices will be set. For one thing, the settlement contains many checks and balances, including:

  • the overarching dual pricing objectives stated in the settlement (the realization of both market-rate revenue and broad public access to the books in the database)
  • pricing which is based on “full time equivalents” (FTEs)
  • and an arbitration provision if the parties can’t agree on pricing.

Also, price-gouging is unlikely because of the significant amount of free access enshrined in the settlement: the full database will be available for free to anyone who walks into a public library in the U.S. or who is associated with a U.S. higher education institution, and a significant portion of each work also will be available for free through so-called “Preview Use” to anyone in the U.S. with internet access. With so much free access to this database, what leverage might Google and/or publishers have to charge exorbitant prices? I also view the settlement as offering pro-competitive effects, since it provides authors, publishers and readers with another important route to market. Finally, the significant public debate and the continuing role of the court in overseeing the settlement are both antidotes to any misbehavior.

It is also noteworthy that Google will not be able to use its position to bully publishers into improving the split of revenues from selling works in the settlement: these are helpfully laid out in the document (although I am still uncertain about what the ongoing costs of running the Book Rights Registry are likely to be–an important question for a publisher, given that authors and publishers will pay for these ongoing costs out of their 63% share of the revenue split). So even if one concludes that the settlement gives Google monopoly power in relation to titles in the settlement, the settlement also ensures that Google isn’t able to exploit that position unfairly, whether in relation to readers, authors, librarians, or publishers.

I have also heard antitrust concerns about Google’s exclusive right to use the orphan works they’ve scanned. I do have concerns about orphan works and the settlement, though my concerns aren’t antitrust-related. (In fact, it may even be that, by going out first, Google has cleared a path for others who might be interested in digitizing and offering these works. The risks are certainly now more clear.) But an imperfection I see relating to orphan works is that, at least immediately following the settlement, Google alone has the ability to exploit orphan works, when even the original publishers of these works will share no such right. As I understand it, this is a byproduct of the fact that this is the settlement of a class action and can be addressed only by Congress passing orphan works legislation. I do think that Google should publicly commit itself to supporting this legislation. And I also think that Google should make its database of information about public domain and orphan works publicly available, so other would-be users of this material will have a better sense of the risks they might face.

I also think that Google should drop the “most favored nations” clause in the agreement.

Barbara Cohen: I agree, if only because the MFN’s meaning seems almost uniformly to be misunderstood. I keep reading concerns expressed by people who mistakenly read the MFN as broadly prohibiting the Book Rights Registry from giving any firm other than Google a better deal in any respect than Google has with respect to exploiting any of the books in the database. But in fact the MFN is an extremely narrow clause and is being misread. Only if, during the next 10 years, there is another class action and settlement involving a “significant amount” of the orphan works in the Google database could this clause be invoked. But, narrow though the MFN is, I agree with Tim that Google should eliminate it, if only to ease public concerns. The mere presence of this clause has been read by many as showing Google’s monopolistic desires and this has cast a long shadow. It would be a shame if fears based on a misunderstood clause came to overshadow the settlement’s remarkable potential to do good. If there are steps that Google and the other parties can take now to eliminate these concerns and ensure the settlement’s approval, I hope that they do so.

Minow: Critics say that the non-representativeness of the class is one ground on which it is possible to object to the proposed Book Search settlement. What do you think?

Cohen: My understanding is that the judge will accept or reject the settlement based on whether or not it’s deemed fair to the class, and it’s unclear to me whether the question of the representativeness of the class will weigh into this decision. (If the lawsuit had been litigated, then the representativeness of the class certainly would have been a key issue.)

Barton: As I think about how much choice rightsholders will have to decide whether and how their works may be used, I have trouble seeing what the risks might be in any case. And as I weigh the particular concerns of various rightsholders, my sense is that overall those at the negotiating table did a good job of addressing those concerns that can be addressed by the settlement.

Certainly as far as small publishers and university presses go, the settlement will be a boon (though I acknowledge that there are some university presses who hold a different view). Many small presses do not have the resources that would be needed for them to digitize their own backlists. But now they will have a means to accomplish that goal, via the settlement. Some presses will decide to develop their own digitization projects – there are quality issues relating to including titles in the settlement (scanning quality; limited metatdata; issues about inserts and other material not included in the settlement or excluded from the settlement database; and so on). And those of us who wish to pursue our own backlist projects are free to do so–in addition to, or instead of, including our books in the Google database. Also, the settlement’s promise of disseminating research and scholarship fits squarely within a university press’s mission. University press representation on the Book Rights Registry would ensure that, over time, this group’s interests continue to be protected–a genuine concern, given that scholarly works will make up such a significant portion of the settlement database.

The interests of libraries, too, seem to have been well represented–no surprise, as they were involved in the Google Library Project from the start and were at the negotiating table. As the ALA and other library associations have recognized, the settlement’s potential to provide unprecedented public access to millions of books also advances the libraries’ core mission of providing patrons with access to information.

Authors’ interests generally are so well protected by the Author-Publisher procedures in the settlement that some worry that authors’ interests have actually been expanded beyond their publishing contracts. But, with the total choice offered by the settlement, this doesn’t seem to me a real concern.

I am aware that, while voicing support for the settlement, some academic authors have expressed concerns that privacy and academic freedom principles and open access issues were inadequately addressed–concerns that I trust will be addressed by Google and the Book Rights Registry to the extent that these issues are products of the settlement.

Some of the concerns that I’ve heard academic authors and others raise don’t seem to be products of the settlement itself, and wouldn’t be solved if the settlement is scuttled. For example, with or without a settlement, we should all be concerned about and seek to address privacy issues, as author James Gleick noted at a recent forum on the settlement.

That said, privacy is one of a number of issues which I think Google ought to have addressed in the run up to the Court’s “opt out” date. I have been disappointed not to have had a meaningful statement from Google which would put to rest the privacy concerns relating to the settlement. Earlier I mentioned that strong support for orphan works should also be forthcoming; I’d like to hear Google’s plans and commitments in both of these areas. There has been a great deal of misunderstanding and misinformation about the settlement; but there has also been some very informed criticism. Most of the latter focuses on issues relating to Google, rather than to the other parties, and I think Google should have engaged more with these sensible reservations before the court date, revising aspects of the settlement, as appropriate. Some aspects of the settlement are obviously part of a careful balancing act, to make sure all parties feel able to support it. But some are not, and Google would increase confidence in its likely approach to issues that will come up about the settlement over the coming years if it were now to address some of the current concerns.

Cohen: What’s most striking to me isn’t the different interests that these academic authors have highlighted, but, rather, our shared interests. In a letter to the court written by a group of academic authors, who were requesting an extension of the deadline for “opting out” of the settlement, they highlighted that the court’s approval of the settlement will unquestionably bring about a significant expansion of access to knowledge–and share knowledge for the sake of the general public. In other words, as with university presses and libraries, academic authors also applaud the alignment of the settlement’s broad aim of public access to knowledge with their own scholarly mission.

Barton: On this point–which I view as the most significant aspect of the settlement–we all seem to be in perfect alignment.

Finally, it is also worth considering what happens if the settlement fails. The settlement offers us a vision of a world where all Americans have access–for free–via c. 20,000 public libraries and higher education institutions–to millions of works which are not now available. They would also have substantial free access to those same titles from every (online) computer in the country. Consumers could also purchase these titles (for what I believe will be a reasonable price), and institutions can subscribe to them (again for what I believe will be a reasonable price). The alternative is access to snippets, at most.

The availability of a book used to be determined either by whether a publisher could justify a print run, or by access to the specialized collections of a relatively small number of libraries. Printing technology and cost structures meant that books were put out of print long before their useful lives were over. We now live in a time when technology and the different commercial dynamics around internet search have combined to give us an unprecedented opportunity to make available again the ideas and work of millions of such books written by generations of scholars and writers. Why wouldn’t we grasp that opportunity?


Learn More

Useful list of links:

Google Book Search Settlement Agreement – A Perspective from Stanford University Libraries by Mimi Calter

Google Book Settlement

When the Invisible is Made Visible: Oxford University Press on the Google Book Settlement By Tim Barton, President of Oxford University Press, Inc.(OUP-USA)

American Library Association Google Book Settlement

*Tim Barton is President, Oxford University Press, Inc.; Barbara Cohen is General Counsel, Oxford University Press, Inc.; Mary Minow is Content Editor, Stanford Copyright & Fair Use Center

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Minow: We’re often asked when folks can reproduce book jackets or other cover art on their websites. On August 4, a federal district court ruled in your client’s favor when he published 10 reproductions of the covers of issues of Famous Monsters of Filmland magazine, and 14 other images in his book, Famous Monster Movie Art of Basil Gogos. Tell us the facts of your case, and how the court analyzed Fair Use.

Tillery: The 160-page work is an Artist Career Retrospective of Basil Gogos covering his entire career spanning over 50 years working in several different genres, including the one for which he is most well known, monster art. Vanguard Productions has successfully published over 19 such Artist Career Retrospectives over the years. It is not a simple republication of a series of magazine covers or anything else, but rather a historical, biographical and critical look at the art, life and times of an incredible artist. Most of the works reproduced are in reduced form and most are accompanied by text with comment directly on a referenced piece (though, according to the Second Circuit, anyway, that is not required.). None of the contested images were used on the cover of my client’s book or in its advertising.


Famous Monster Movie Art of Basil Gogos

Famous Monster Movie Art of Basil Gogos

Minow: Looking at the Purpose and Character factor in Fair Use – what made the book “sufficiently transformative”?

Tillery: The works were transformed because they were not used for the original purpose for which they were created and used. The original purpose was to attract potential purchasers to a magazine of 69-100 pages of other material, and the book’s purpose was rather to merely illustrate some of the work of the artist over the years, so that it could be explained and discussed in the context of his life, times, industry, development as an artist, etc. Thus, this worked transformed the original art into examples, illustrations of the artist’s works so that readers would understand and appreciate the text and the other non-claimed works in the context of his life, times and career.

Minow: In the Amount and Substantiality factor, when is a cover considered a copyrighted work versus a small portion of a copyrighted work?

Tillery: A cover and the original art upon which it is based is, of course, standing alone a copyrightable work … If the cover is registered and claimed to be infringed individually, then this Factor/Test would find in favor of the plaintiff. Keep in mind this is only one of Four Factors to be considered and the list is non-exclusive and not mechanically or mathematically applied. As you know, copyright exists the moment a copyrightable work is put in fixed form. Thus, the sentence I just typed and this one are protected by copyright law NOW. So, in theory, in a 68-100 page magazine such as the ones at issue here, Famous Monsters of Filmland, there are thousands of copyrightable works. Should each line, paragraph, page, story, photo, ad, etc. be treated, for purposes of this factor as an individual work for purposes of this Factor/Test? I think not. To do so would swallow the Factor into meaninglessness.

In this case, Plaintiffs claimed infringement of 21 Registered Works (originally 36, but they later added 3 new ones and dropped 15, realizing that those were actually in the Public Domain). Each Work claimed was a complete magazine consisting of 68-100 pages filed with art, cartoons, ads, photos, stories, text, letters, etc. None of the individual parts of the magazines were registered or claimed to be infringed. Thus, the “WORK” to be compared to the “portion allegedly taken” was the entire magazine, not the particular portion allegedly taken. Thus, doing the math, if defendant used one page, then he used 1-1.5% of the WORK, not 100% of the individual portion thereof.

Wolfman by Gogos

Wolfman by Gogos

The Court here followed clear Third Circuit law here relying on the Video Pipeline case, a case involving the use of a small part of a film. In that case, as in any film case, the Work at issue was a film which obviously consists of thousands of individual photographs, each one of which is, in theory, copyrightable. The defendant there, as the one here, copied a small portion of the entire film (2%), but in so doing, copied 100% of each individual frame of the film, each one of which is, in theory, individually copyrightable. Thus, if this Factor/Test is to have any meaning at all, it must, logically be an analysis which looks at the entire Copyrighted Work as Registered and as claimed, not just a portion thereof, even if, in theory, that portion could have been copyrighted on its own. The Third Circuit got this one right and so did Judge Baylson.

Minow: How important was it whether or not the plaintiff planned his own coffee table book in the Market Effect factor? What about lost licensing opportunities for the use of the images?

Tillery: In this case, the plaintiff did nothing prior to the lawsuit and, in fact, nothing prior to his deposition being taken to pursue this coffee table book opportunity. When he and/or his counsel were alerted by necessary inquiries in a deposition, they must have realized this was a serious defect in their claim and moved quickly to try to correct it. I think the effort was rather half-hearted and had a result that they probably did not expect. The only two potential publishers that Plaintiffs contacted to determine interest later testified under oath that the Gogos book did not adversely affect the market for such a contemplated coffee table book. Further, both said that they remained interested in publishing such a work, with the caveat that Plaintiffs could clear title to the Trademarks and any other copyrightable works from the magazines to be republished, such as the many still photographs from various monster movies owned by film company Universal Studios and others. Plaintiff put in no evidence whatsoever of any lost licensing opportunities due to the publication of the Gogos Book. Because there were none, I believe. If he had in fact taken steps to try to publish or license before the publication of the Gogos Book and if there had been any significant resistance to same because of the publication of the Gogos Book, that might make a different case. He did not and nothing like that happened.

Minow: Anything else you’d like to add?

Creature of the Black Lagoon by Gogos

Creature of the Black Lagoon by Gogos

Tillery: Although this opinion simply applies clear law to the facts at hand and thus breaks no new legal ground, it is a very important example and reminder to the copyright bar, the artistic community and the publishing industry that Fair Use is as important in the constitutional and statutory scheme as Copyright protection itself. If we are to be true to the original purpose of both the Constitutional basis and the statutory goal of the law enhancing creativity to make ours a richer society, we (and Courts) must champion both Copyright Protection and Fair Use. And, we must recompense victorious Fair Use defendants for their fees and costs under the Act, as well.

Minow: Do you know if the plaintiff will appeal?

Tillery: Plaintiff has filed a Notice of Appeal. In light of Judge Baylson’s scholarly opinion, we are confident the Third Circuit will affirm. Pending now before Judge Baylson is Defendant’s Motion for Attorneys’ Fees under Section 505 of The Copyright Act, for over $300,000.


Learn More

Useful links:

Warren Publishing v Spurlock
Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.

*M. Kelly Tillery represented J. David Spurlock and Vanguard Productions, the co-author and publisher of “Famous Monster Movie Art of Basil Gogos.” He is a national authority in intellectual property and anti-counterfeiting protection, a partner with Pepper Hamilton LLP and a member of the firm’s Intellectual Property Practice Group.

Mary Minow is Executive Editor of the Stanford Copyright & Fair Use site.

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New perspective on the proposed Google Book Search Settlement Agreement from Mimi Calter, Stanford University Libraries at: