University of Michigan To Allow Campus Access To Digital Oprhan Works

What to do about orphan books and digital access?  One of the several reasons that the Amended Settlement Agreement negotiated by Google and the publisher and author associations was not approved had to do with these books.  Judge Chin said that it was up to Congress to make changes to the copyright laws to account for their use.  Congress is not one of those entities that tends to move fast when it comes to intellectual property, its bias for big content notwithstanding.  The question remains, without court or congressional approval, what to with that massive amount of in-copyright material where no rightsholder can be identified or located?

The University of Michigan Library System has decided to make these texts available to users who are on campus.  If one can get to a UM library, one can conceivably use the book as if it were the library's physical copy.  The library announced last month that it was researching the status of books in its digital collection so as to identify orphan works. This move to open access to these works is welcome in the sense that it opens some form of access to the content of these books.  The Library System says that its lawyers advised it that this is appropriately fair use under §107 of the Copyright Act. 

Paul Givler, executive director of the Association of American University Presses, disagrees.  He is quoted in the Chronicle of Higher Education as saying "there is nothing in either the copyright statute or the case law to justify such a sweeping claim."  That's the problem with fair use.  Case law generally fleshes out the factors listed in the statute.  Givens is probably right in that there isn't case law on this...yet.  I would put money that there will be a lawsuit over this, just as there was when Cambridge University and other publishers sued Georgia State University over the practice of placing electronic copies of in-copyright texts from licensed databases on electronic reserve.  The District Court stated:

Here, the evidence indicates that ERes and uLearn have significant noninfringing uses. They can be used to facilitate distribution of materials protected by fair use. They can be used to digitally distribute works for which Georgia State owns licenses. They can also be used to distribute copyrighted works with permission from the copyright holders. They can be used to distribute original materials created by the instructors or materials for which the instructors or the university owns copyrights. uLearn allows instructors to utilize a wide range of tools to manage their courses, such as discussion forums, quizzes, and announcement pages. None of these activities implicate copyright infringement. (Order of September 30, 2010, at page 28.)

There are still other issues to resolve in this case, specifically whether Georgia State's Copyright Policy resulted in ongoing and continuous misuse of the fair use defense.  That is the plaintiff-publisher's burden.  The University defendants have to show that each allegation of infringement under the University's Copyright Policy was fair use.  Nonetheless, the fact that this issue will be resolved and lead to a precedent is far better than waiting for Congress to set rules.  I think that it would be a positive development if a court ruled on what the University of Michigan Library system is doing with digitized orphan books.

The origina issue in the Google Book case was whether Google could scan whole books and make them available in snippet view.  Google claimed fair use.  As we know, that core issue was never litigated. Settlement was preferable at least to th publisher and author groups than setting a precedent against them.  Perhaps Michigan can do us all a favor and get the courts to rule on the ability to use digitized copies of library holdings.  Win or lose, at least we'd know without having to dance around the issue. [MG]