Oberhelman, D.D. (2011), "Alexandria, the world brain, and the universal digital library: beyond the Google Books settlement", Reference Reviews, Vol. 25 No. 8. https://doi.org/10.1108/rr.2011.09925haa.002
Emerald Group Publishing Limited
Copyright © 2011, Emerald Group Publishing Limited
Alexandria, the world brain, and the universal digital library: beyond the Google Books settlement
Article Type: Viewpoint From: Reference Reviews, Volume 25, Issue 8
Purpose – - This paper aims to explore the ramifications of the rejection of the Google Books Amended Settlement Agreement and its impact for digitization initiatives.Design/methodology/approach - This paper reviews the latest available literature on universal libraries and related digitization initiatives to determine the effect of the recent rejection of the Google Books amended settlement agreement on access to digitized collections.Findings - The rejection of the Google Books amended settlement agreement has caused other digitization initiatives to, at least temporarily, suspend certain efforts and revoke access to some material until current legislation finds a balance between acquisition/access policies and the rights of the copyright holders.Originality/value - This article explores the latest legislation regarding this very important issue for libraries and other entities with current and ongoing digitization initiatives, and provides them with a framework for future consideration.
Keywords: Digital libraries, Copyright
The utopian dream of a single, unified compendium of all human knowledge – of a universal library of sorts comprising all the written output of civilization – has assumed various forms throughout the millennia. Yet visions of a universal library in different eras have always found that their “acquisitions” policies can often be somewhat at odds with the rights of the authors, publishers, and other entities that produce or possess that knowledge. It would seem that accumulating all knowledge must entail rethinking provisions for the individual ownership of property, especially intellectual property. The famed library of Alexandria in the Hellenistic Age, which could have held a staggering number of more than 400,000 scrolls, was one of the earliest attempts to build a repository of all information from the known world, but it has been tainted since ancient times with accusations (possibly false or exaggerated) of manuscripts being seized from passing ships and other literary treasures being stolen (Bagnall, 2002, pp. 353-354).
Fast forward to the early twentieth century and the dream of a universal library re-emerges, a library that utilizes cutting-edge technology for its day: microfilm and punch cards. In 1945 the information scientist Vannevar Bush outlined an indexed device of microfilm readers and screens he dubbed the “memex” (Bush, 1945), and a few years earlier, the novelist and futurist H.G. Wells envisioned a similar microfilm-based device that would be a “permanent world encyclopedia” or “world brain”. With Wells, though, we see some of the same tension over the acquisition of texts for this world brain. He maintains in an address that:
The development of our racial intelligence lies rather in the direction of creating a new world organ for the collection, indexing, summarizing and release of knowledge, than in any further tinkering with the highly conservative and resistant university system, local, national and traditional in texture, which already exists (Wells, 1937).
The “university system,” which would presumably by extension include access restrictions imposed by academic libraries as well as the obstacles created by the scholarly publishing industry and copyright laws, is anathema to the socialist Wells and his efforts to establish a collective, searchable aggregate of all human knowledge.
The memex and the world brain were never developed, but the advent of the worldwide web and digital technology in the late twentieth century brought Bush and Wells’ vague, microfilm-based networks to life in the ether of the internet. In the online environment of the twenty-first century, the ongoing battle between the desire to bring together all written records and the cultural/legal traditions which assert the copyright privileges of authors and publishers is still raging, most dramatically in the debates surrounding the Google Books project and the recent rejection of the settlement Google reached with authors and publishers over copyright. Libraries, many of which partnered with Google and helped contribute to its growing collection of scanned titles, are left wondering what the future will hold for the digitization of our cultural patrimony, and are thus waiting to see what changes in copyright legislation could emerge from the ashes of the Google settlement.
The Google Books site was launched in 2004 amidst great fanfare. Partnering with now over 40 major libraries in the US and other countries (a complete list of which is available at www.google.com/googlebooks/partners.html), Google began digitizing public domain books for online access, but raised many eyebrows when it started to include in-copyright works, albeit displaying only snippets and partial texts. The copyright issues engendered by Google Books were hotly debated, particularly in the grey area of “orphaned works”, in-copyright publications for which rights owners cannot be immediately located. The Authors Guild and Association of American Publishers brought suit, and by 2008 the two parties accepted an Amended Settlement Agreement (ASA) that called for the creation of a Book Rights Registry and the now infamous “opt-out” provisions requiring rights owners to request the removal of their works from the digital collection; Chris Holland (2010) gives a succinct overview of the legal ramifications of the settlement. The tension between Google’s efforts to digitize and the concerns over copyright was not, however, diminished by the ASA, and the fact that Google is a for-profit company compiling a massive archive of digitized books did not escape notice. The legal battle was not over.
Thus, in March 2011, US District Judge Denny Chin rejected the ASA between the authors’ and publishers’ organizations and Google. This move has had a profound effect upon not only the Google Books project, but also on all initiatives to create large-scale digital repositories of published works. The decision addresses the central issue of the matter: to what extent can the amassing of a large digital collection, in this case one owned by a commercial company, supersede the rights of authors and other stakeholders? Judge Chin writes:
While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action – which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of “snippets” for on-line searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case (Chin, 2011, pp. 1-2).
In the end, the judge regards the ASA as granting too much control over copyrighted works to one company, and therefore rejected it, leaving the future uncertain for both Google and the other parties, and especially for libraries. In this instance, the dream of a universal digital library has had to be scaled back and retooled to allow for an “opt-in” rather than “opt-out” system for rights holders and other safeguards for in-copyright publications such as orphaned works.
The inevitable question now is whether there can be a universal digital library that balances a broad acquisitions policy to maximize content with the need to protect copyright and related issues, and where individual libraries stand in partnering on digital initiatives in this current climate. Some partnerships have already emerged in the world of digitization that are seeking to continue their commitment to open access digitized books, despite the rejection of the Google settlement. The Hathi Trust (www.hathitrust.org) (RR 2011/301), a coalition of over 50 predominantly US-based research libraries, many of which are Google partners, has emerged in the last few years as a non-profit alternative to the Google Books project. In March 2011, the Hathi Trust issued its own statement reaffirming its basic mission “to contribute to the public good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge” (Christenson, 2011), though it recently has announced plans to single out orphaned works in its collection in an effort to avoid its own copyright issues. Small-scale collections are also faced with a growing dilemma over orphaned works in their digital holdings after the defeat of the ASA. The University of California at Los Angeles, for example, has long maintained an online streaming collection of early twentieth-century Mexican music recordings, many of them of indeterminate copyright status or with no traceable rights holders. Many titles in that collection have now been made unavailable as UCLA and other groups play a game of “wait and see” to test the current legal waters (Parry, 2011). The future remains uncertain for libraries, and calls for legislative action on both sides of the Atlantic are now becoming commonplace.
Perhaps the lasting outcome of the Google Books Settlement will be the emergence of new legislation – legislation that balances the desire to build a universal digital library with respect for copyright and provisions to account for orphaned works. In the US, Pamela Samuelson, professor of law at the University of California, Berkeley, has outlined a series of measures she would like the US Congress to enact which would grant licenses to make in-copyright but orphaned works accessible should the cost of tracking down rights holders prove to be impossible or prohibitively expensive (Samuelson, 2011). The European Parliament is also considering changes to copyright law that would help ease some of the barriers to digitization. The EU has already embarked upon its own ambitious transnational digital project, Europeana.eu (RR 2010/187), which makes available vast archival holdings from the archives and national libraries of EU member states. The European Commission as also issued a proposal for the revision of copyright provisions regarding orphaned works to create a framework for the expansion of digital initiatives (European Commission, 2011). The fate of such proposals is by no means clear at this point, but the imperative to digitize might force a re-evaluation of existing standards, and perhaps more “opt-out” provisions will be made permissible despite the rejection of the Google ASA.
The future of a universal digital library might thus lie in the hands of legislators. Google sought to create its own arrangement with authors and publishers, but opposition to a corporation gaining that much power in the formation of a universal library undermined that arrangement. Now governments might be stepping in to give individual libraries and larger consortia a clearer set of guidelines to follow, and perhaps out of these efforts a true universal digital library, or constellation of digital libraries, will emerge. But we, as yet, do not know whether this will result in some new library at Alexandria sanctioning the wholesale seizure of books to add to its collection or a new World Brain bypassing traditional institutional processes for the production and dissemination of scholarly and other information. The battle between acquisition and respect for copyright in the rise of the universal digital library will be a critical one both for libraries and for the publishing world as a whole. It is to be hoped that the goal of broad access to information is achieved while simultaneously preserving the basic mechanisms which safeguard the rights of authors and creators of these works being shared freely with posterity.
David D. Oberhelmanbased at Humanities-Social Sciences Division, Oklahoma State University Library, Stillwater, OK, USA firstname.lastname@example.org
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