Many years ago, when I was a young consultant, I worked on a National Science Foundation funded project to explore the use of technology for expanding access to scientific and technical information in a developing country's R&D and higher education establishments. This was in pre-Internet days when monthly access to a satellite channel to pipe US-funded R&D information to that country's academic institutions cost an arm and a leg.
One of the basic issues I dealt with was a sub-project to augment the science book and journal collections of local academic libraries. Based on what I saw that students and professors had to go though back then just to get current copies of scientific journal articles, I came away from the project with a renewed appreciation for the library and publishing resources we take for granted in developed countries.
I was reminded of that project and of how far we've come when I learned about Google's publishing amd library plans. In connection with this Jonathan Band's commentary The Google Print Library Project: A Copyright Analysis is an interesting read. Here is how he describes Google's controversial Print Library project:
Under the Print Library Project, Google plans to scan into its search database materials from the libraries of Harvard, Stanford, and Oxford Universities, the University of Michigan, and the New York Public Library. In response to search queries, users will be able to browse the full text of public domain materials, but only a few sentences of text around the search term in books still covered by copyright. This is a critical fact that bears repeating: for books still under copyright users will be able to see only a few sentences on either side of the search term. Users will not see a few pages, as under the Publisher Program, nor the full text, as for public domain works. Indeed, a full page of the book is never seen for an in-copyright book scanned as part of the Library Project unless a publisher decides to transfer their book into their Publisher Program account, in which case it would be under the agreement between Google and the copyright holder.
Much of Band's copyright law analysis which follows rests on a court case involving the indexing of images from an artist's website; I shall assume this is relevant here. However, as I am not a copyright attorney, I do not understand the relationship between a case involving the copying of images already on the Web (which Band cites) with a situation where a commercial company (Google) must first copy and convert copyrighted works into electronic form -- without obtaining permission from the copyright owner -- before they can be indexed and published on the Internet.
Band also discusses the applicability of Fair Use to what Google is doing with copyright-protected works. Since coming up with an unambiguous one-size-fits-all definition of Fair Use involves a great deal of judgement and wisdom, I do not pretend to follow this part of Band's argument. I do find it somewhat surprising for the concept of Fair Use to be used to address the potentially vast amount of copying that the commercial firm Google will need to perform in order to turn this project into reality.
Don't get me wrong; I certainly agree that a service such as is planned by Google would be fantastic. I also believe if, managed correctly, it could be a fantastic benefit for authors and publishers alike.
But I'm still having a hard time getting over the fact that Google has to copy the works before it can build its indexes and make the service available online. Just because Google will make it difficult for users to use hits on copyrighted works to replace the whole work doesn't change the fact that Google's service -- which will help Google to expand its targeted on-demand advertising sales -- relies on the existence of the copyrighted work to make it valuable. If I were a copyright owner, and someone else was going to benefit from the sale of products derived from my own, I'd want to scrutinize the deals very very carefully, too.
This also raises an interesting issue related to situations where it is difficult if not impossible to trace ownership of copyrighted works, particularly older works. What do you do when you cannot locate the owner to ask for permission? Should there be a copyright exemption in such situations?
I don't know what the answer is to this. Copyright law in the U.S., as far as I know, does not require registration for the law to provide protection. Does that mean we should give companies like Google the benefit of the doubt and, as long as they have made a "good faith" effort to locate the owner, provide some legal guidance over when unauthorized (and uncompensated) copying, indexing, and distribution can take place?
That's a tough question. One thing that comes to my mind, however, is that we have to deal with unpleasant facts every day. And just because technology lets us do something doesn't make it right.
I have the same reaction when reading about the "barriers" that copyright law places in the way of music samplers, night club DJ's, and others who want to mash together cuts from selected audio and video works to "create" a new and different work. Some writers view prohibitions against this as flying in the face of society's need to promote freedom of expression and creativity. I don't agree with this argument at all -- just because you can do something doesn't make it legal. And just because you can easily copy and mix works together doesn't mean it's right to do that, either, especially if the original artist had a vision of his or her own that could easily be messed up by doing an electronic cut and paste.
So it may be with Google's project. Absolutely, Universal Access to Knowledge is A Good Thing. And yes, publishers and others need to "get on the bandwagon" of new technology and market economics if they don't want to be left behind.
Perhaps the controversy that is raised by this Google project will be addressed by the development of an appropriate payment scheme agreeable to all whereby copyright owners are explicitly compensated for the value contributed to Google services, as measured by their sharing in the ad revenues generated by use of the search system.
One can envision, too, a pool of money generated by advertising related to hits on works whose owners cannot be found, a pool which could be distributed through an industry or nonprofit group specializing in such issues. Perhaps such moneys could be used to provide access to those in developing coutries for whom Western prices are a barrier to learning.