The more the Google Books project proceeds, the faster my thinking about it changes. You could say I have either the pleasure, or the misfortune, to be looking at these kinds of developments through a couple of frameworks: my scholarship in book history; my service as a librarian (both to my patrons – by making information accessible – and to rights holders); and my position as a creator of various kinds.
I think I’ve developed some kind of opinion about Google Books until I realize I have been thinking only through one or two of these, and when I begin to shift my frame of reference, I’m brought back down to earth. This is a complicated issue that I can’t even reconcile with myself. It’s no wonder no one else seems to be able to agree on it either.
Lately, though, as an author myself I have started to come down on the side of opposing Google Books much in the way Harvard’s library has. Robert Darnton – hero of book history and head of the library – made the decision to allow Google to scan only public domain (out-of-copyright) works from their library.
To contrast, basically everything from the University of Michigan library system is being scanned, and has been from the outset of the project. It’s not abstract to me, nor to others at the university: simply going into the library and looking seeing an entire section empty “due to scanning for Google Books project” makes it very real. It makes it exciting to know that Michigan is a foundation of such a major and groundbreaking endeavor, and within the university community, the reactions I’ve encountered have been overwhelmingly positive.
I can see how this is a Good Thing. I’ve often found myself arguing the same.
However, when I stopped to think about how I’d feel about someone scanning my work and making it part of a larger product to be licensed – which is the ultimate plan here – I get a crawling feeling. It’s not about the money. There will, in the end, be some kind of agreement worked out wherein authors, via their publishers, will get some royalties for use. But for me, and I assume for many other writers, this isn’t exactly the point. Although making money from my work would be nice, copyright means something very different to me – it means my exclusive rights to the sell the work, yes, but to its use as well.
The big question in the past has been whether simply scanning works and allowing them to be searchable – but not viewable (which is frustrating to the end user, myself included) – is fair use or not. I would have liked to see this one go to the courts rather than be settled, as it was. This is an important question because we are talking about technology that is prevalent now but wasn’t in the past: it poses new questions for fair use. On the one hand, you could say Google is creating a kind of giant phone book. On the other hand, if I go to make photocopies of an entire library’s holdings for personal use, swearing I won’t read through them, just search…. well, this is a tricky question because it’s not about phone books or photocopiers anymore. This is a new kind of derivative work, in a sense.
But back to my problem with Google Books. I suppose it’s the larger problem of ownership of one’s own work, and where the rights go when one gets published. On average, about half the academic books I check are copyright to the author, and the other half to the publishers/university. Most fiction authors, as far as I can tell, retain their rights to their work via copyright (the publisher doesn’t claim copyright in the colophon) but license their work to the publisher under a contract, thus losing their exclusive rights in that way. The “ownership” and relationship of writer to work becomes murky here. Very murky.
How should Google go about negotiating for not just scanning and indexing books, but for putting this corpus together into a licensed product? By this, I mean Google will host the digital images of the books and you pay a license fee, like a subscription, for access. Allegedly, there will be a kiosk in each public library in the US for use of this service for free and printing of public domain works. But essentially, this product is going to be marketed toward universities and other large institutions that can afford it.
In this case, Google is reselling works it does not have the rights to. Does Google need to go to each individual rights-holder and negotiate for each work? It sounds like it should be dismissed out of hand – it’s too much work and time, and we’re getting in the way of progress here! Luddite me, for even suggesting this. Right? But this is the side I’ve come down on.
What makes the whole issue even more complicated is an author who decides to assert very specific rights over his or her work, who has already licensed it. Maybe it’s licensed via a publisher for an amount of time or certain use (like publishing a hardcover book), in the more traditional way. But maybe this author has, as some are moving toward, released a work under a license like Creative Commons or GPL. In other words, a license that requires dissemination of the work under specific terms and requires that the license is retained. Would this throw a wrench into Google Books? Does it need uniform licensing? Maybe these are uninformed questions, but it’s what I’ve been thinking about lately.
I’ve probably gone on too long. My fundamental point is that the solution to this, right now, seems to be “find a way to compensate the authors” as though copyright is only about money. It’s not. It’s about exclusive rights to a work’s use, in the whole sense. Google Books should not be an opt-out project. Maybe I sound like I’m trying to jump in front of the train of the future here, and contradicting my own advocacy of broader access to information. But “the internet” does not change copyright law or the idea behind it – time-limited monopoly rights – and the current system, as far as I can see, dictates that Google needs to negotiate for the rights to scan, retain digital copies of whole works, and then resell them as a part of a licensed product.
In other words, I’ve gone from shaking my head at Harvard’s decision to embracing it fully. Public domain, yes. Works in copyright? Google doesn’t get a “Google is not evil” exemption. Negotiate first, scan later. I know it’s too late now, but that doesn’t mean Google (and the libraries it is working with) is not accountable for this.