Sunday, April 19, 2009

A Solution to Orphan Books

It is easy to identify orphan books, and we do not need Google’s help in accomplishing the task, thereby obviating the rationale for a critical part of the proposed Google Book Settlement: the disposition of millions of orphan books that, in spite of their usefulness to the general public, are currently not accessible to the public due to their uncertain copyright status.

In order to resolve the issue once and for all, we should establish a mandatory online copyright registration system that requires all authors to register their books that they wish to keep their copyrights with the US Copyright Office. The current system that is in place is voluntary, and, thus, it does not allow easy identification of orphan books through the registry. Since the current system already use the Internet as a means of registration, it should be relatively easy to convert it to a mandatory registration system. Another advantage of mandatory registration is that the Library of Congress will be able to keep a digital copy of the author’s work as a part of the nation’s literary heritage which can then be accessed by anyone freely once the author is dead or registration renewal has not been kept up.

Furthermore, the registrant (author or publisher) should be required to pay $10 per year per book registration fee ($1 per year perhaps for a published article) instead of the current, one-time only fee of $45 to the Copyright Office to keep their registration current (or $25 for the first time and $10 per year thereafter). Those books that are not registered within a year of their original publication date (or within two years of the announced start date of the registration program) should be automatically considered as public domain works for free digital distribution online (in which no demand must be made for fees or other monetizable articles such as personal information from the reader when downloading eBooks). The author’s traditional right for commercial distributions both in digital and printed formats should remains intact, however, even if the author fails to renew the annual registration. (The author, needless to say, must be vigilant of the annual registration due time, just as any homeowner should be of the due date of one’s property tax payment.)

The Article I, Section 8 provision of the US Constitution for patent and copyright protection is based on the assumption of economic viability of the works so that their authors may receive economical benefits for a limited time from their works. If a publisher or an author cannot afford to pay $10 a year registration fee on his or her copyrighted book, the US copyright laws should consider such work commercially not viable to the author, hence not under the US copyright protection provisioned by the US Constitution when such book is made accessible free of charge online to the public.

This registration program will allow all books not registered within two years of the inception of the program to be legally identified as orphaned, public domain books for online digital distribution. Needless to say, those who intend to charge for the access to benefit commercially must still make arrangement with the authors or publishers in the traditional manner and the authors/publishers should benefit commercially from such arrangement. In the event an online distributor intends to monetize orphan books that are identified by the registry as such, a certain percentage of the profit should go to the Library of Congress for the maintenance of the national digital archive, not to a for-profit company such as Google.

Google should not be given any special consideration or exemption because it happens to be the biggest distributor of online information. Google is trying to take the advantage of the sad state of orphan books for its own monetary benefit at the expense of the public as it is trying to profit from the dead authors by protecting itself from the legal uncertainty concerning orphan books while keeping that uncertainty alive for other potential competitors to monopolize online eBook distribution.

With a registration system hereby proposed, anyone can check to see if a book is a public domain book or not in two years after the inception of the program through the Library of the Congress registry, and thus be free to make the book available to the public free of charge without forcing the public to depend on the commercial entity such as Google that is intent on dominating the access to online information.

Alternatively, the digitized files of orphan books can be uploaded to a national repository under the auspice of the Library of Congress (perhaps scanned and uploaded by tens of thousands of local library volunteers from the local libraries). Then the files should be made available for all public and school libraries free of charge. So anyone who has a library card would have the free access to those books online.

Additionally, the Library of Congress would authorize such well-known non-profit free online libraries as Project Gutenberg, the IPL, Bartleby, and Internet Archive to add orphan books to their online collections. As to the non-profit designation, it’s decided by their taxation status. This should allow people without a library affiliation to access those books free of charge—thus giving not only the people in the US the benefit, but also everyone else in the world that has internet access.

No commercial entity should ever be given the “right” to orphan books as they belong to no one but to our nation and its literary heritage. Congress must move to insure this by making the necessary adjustments to the US copyright law to ensure that orphan books remain available without cost to the American people as part of their cultural heritage. A mandatory national copyright registry system under the auspice of the US Copyright Office can easily accomplish that goal.