Google’s aim to scan and sell out-of-print books and books whose copyright holder cannot be found may be one step closer to reality with an amended settlement that supporters say would open up competition and protect authors’ rights. Unfortunately, rather than laying down clear provisions for the future use of orphan books by all potential entrants in this market, the revised settlement only sets orphan book policy for Google alone.
Two weeks ago, Google and two authors’ groups, which have come under fire for an agreement that would give Google and its book search a de facto monopoly over works whose authors cannot be located, filed a modified settlement to attempt to please regulators. The new agreement, which was primarily motivated by concerns filed by the Justice Department in September, creates a trustee to oversee revenue from “orphan books” and to grant other companies the right to sell these books if Congress approves such an arrangement.
The problem with this latest version of the settlement is that it does little to answer the nagging question about whether other online book providers would be able to scan and provide the orphan books that Google has jumped on. While the establishment of a more independent group to oversee the search for orphan authors may placate regulators, giving Congress the future discretion to approve other entrants in this market retains uncertainty about the nature of copyrights for orphan books.
Rather than waiting until an undetermined period to set policy on this question, Congress should become involved now and explicitly decide whether other entities will have the rights to scan and distribute these works. It is unclear why legislators with the authority to settle this question should determine this question at a future date, especially if Google will not be allowed to be the sole copyright holder of these orphan books. Delaying such a definitive decision only perpetuates uncertainty and may hamper the development of an industry that could be vibrant and competitive to the benefit of consumers.
After years of court proceedings, it has become apparent that the judicial process has not (and likely will not in the near future) arrive at a satisfactory answer to the orphan book issue. After the latest version of the settlement, it is clear that now is the time for Congress to face this controversial question.
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