Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document :
« This Preliminary Analysis and Discussion Document (the “Analysis”) addresses the issues raised by the intersection between copyright law and the mass digitization of books. The Copyright Office (the “Office”) has prepared this Analysis for the purpose of facilitating further discussion among the affected parties and the public – discussions that may encompass a number of possible approaches, including voluntary initiatives, legislative options, or both.
On March 22, 2011, the United States District Court for the Southern District of New York rejected a proposed settlement of the class action lawsuit brought by the Authors Guild and a related suit by book publishers against Google for the mass digitization of books in several large U.S. libraries. The court ruled that the class action settlement would have redefined the relationship between copyright law and new technology, and encroached upon Congress’s ability to set copyright policy with respect to orphan works. Subsequently, on September 12, 2011, the Authors Guild and several prominent authors sued five university libraries that participated in Google’s mass digitization project as well as a library consortium known as the HathiTrust after the universities announced their intention to offer access to some of the book scans Google had provided to them.
These developments have sparked public debate on the risks and opportunities that mass book digitization may create for authors, publishers, libraries, technology companies, the general public, and the corresponding legal framework. The questions are many: What mass digitization projects are currently underway in the United States? What are the objectives and who are the intended beneficiaries? How are the exclusive rights of copyright owners implicated? What exceptions or limitations may apply, to whom, and in what circumstances? To the extent there are public policy goals at issue, what could Congress do to facilitate or control the boundaries of mass digitization projects? Would orphan works legislation help? Are efficient and costeffective licensing options available? Could Congress encourage or even require new licensing schemes for mass digitization? Could it provide direction and oversight to authors, publishers,
libraries, and technology companies as they explore solutions? Indeed, these stakeholders may be in the best position to find points of consensus and create strategies for the U.S. book and library sectors.
The issues discussed in this Analysis are complex and require public discussion. The Office recognizes that the Google Books proceeding, initiated more than six years ago, and the recently filed lawsuit involving the HathiTrust Digital Library will continue to influence the public debate over mass digitization. International developments may also contribute to the debate in the United States. Although the marketplace and the issues will continue to evolve, the Office believes there is sufficient information to undertake an intense public discussion about the broader policy implications of mass book digitization. By necessity, this discussion must address the relationship between the emerging digital marketplace and the existing copyright framework. »