Authors Guild Testimony Before House Judiciary Committee

On September 10, Paul Aiken appeared before the House Judiciary Committee on behalf of the Authors Guild and submitted the following written testimony:

My name is Paul Aiken.  I’m the executive director of the Authors Guild, the largest society of published authors in the U.S., representing more than 8,500 book authors and freelance writers.  Our members represent the broad sweep of American authorship, including literary and genre fiction, nonfiction, trade, academic, and children’s book authors, textbook authors, freelance journalists and poets.[1]  Guild members have won countless honors and all major literary awards, including the Nobel Prize for Literature.[2]

 The Authors Guild promotes the professional interests of authors:  we’re advocates for effective copyright protection, fair contracts, and free expression.

The Challenges Facing Print Media

 It’s a pleasure to be here before this committee, at this moment in book publishing history.  Never in the Authors Guild’s long history has its straightforward mission – to maintain writing as a viable livelihood – been so daunting.  The digital environment is brutal for print media.  As we meet here today, the newspaper industry is dying.  Credible estimates say that one newspaper is closing each week in America.  The magazine industry isn’t much better off, as week by week we see venerable publications shrink in size and ambition.  The loss to our society from the collapse of these industries is immeasurable.

The book industry, happily, has to date fared better than our colleagues in the print media.  This is, no doubt, partly due to our medium:  print books are still superior in almost every way to their electronic counterparts.  That advantage is rapidly fading, however; our transition to digital form is underway, and things change quickly in a digital environment.

The portents are not encouraging.  Finding a sustainable business model for creative work in digital form seems nearly impossible on the Internet:  if piracy doesn’t get you, the aggregators will.

We’ll likely need many things to go right to avoid the fate of our colleagues in the print industries.

The Opportunity

Yet, there are reasons for optimism.  One of those reasons is our settlement with Google, which brings us here today.  That settlement promises to address one of the oldest and most vexing of market failures:  the loss to the commercial market of out-of-print books.

If you had asked knowledgeable people a couple of years ago whether we were close to delivering a near universal library to public libraries, colleges, and universities across the country, they would have scoffed.  The technical challenges seemed too daunting, the rights clearance issues insurmountable, the passions stirred by the ongoing copyright wars far too intense for such a result to be achieved in the foreseeable future.

But here we are, on the cusp of that extraordinary achievement:  the marriage of much of our collective library with the Internet.  The benefits to readers, students, and scholars would be profound.  Here are a few:

1. The settlement would turn every library into a world-class research facility, by offering every public library building in the U.S. – all 16,500 of them – a free portal to millions of out-of-print books.  The settlement would also offer a free portal to that same vast database of out-of-print books to more than 4,000 higher education institutions, from community colleges to our most elite universities.

2. Students and professors at colleges with the most modest of endowments would find an important part of the academic playing field had come to level, as they gain full access from every computer on campus to a library exceeding that of the finest Ivy League schools.

3. The visually and reading impaired would find the stacks of libraries open up to them as never before, gaining access to orders of magnitude more books than they currently have.

4. The settlement would offer anyone online in the U.S. free "preview" access to hundreds of millions of pages of text (up to 20% of each book).[3]  Readers from their own home computers would be able to review hundreds of accounts of the Battle of Vicksburg, or of the beginnings of the Industrial Revolution, or of the sources and interpretation of Moby Dick, at no charge.  Should a reader find one book particularly compelling, she could buy access to the entire book.  Access to public domain books is free, of course, and authors controlling the rights to their books can choose to give away access for free.

Authors and publishers are willing to make this deal for several reasons.  We of course hope to profit from the market that’s created.  We would like to have the Internet work for us, creating a market of the previously unmarketable.  We also have a vital interest in keeping books central to our students, scholars, and culture.  We’re confident that making this vast library available online will help do just that.

Authors have another strong interest in making this deal work:  authors need libraries.  Libraries fuel their work.  Authors of every type read, reinterpret and rely on their fellow authors, and those who have come before them.  This is true of the scholarly writer and of the author of popular nonfiction.  It’s as true for authors of books for children as it is for authors of books for adults.  Authors of literary fiction also rely heavily on those who’ve come before them.  The creative expressions are new, but many of the ideas underlying literary works are eternal.  Writers of genre fiction are no exception.  Romance writers read romance novels and other works and offer their own interpretation and variations on the romance theme.

Authors, in short, want not only to realize the untapped value of their out-of-print works, they want access to this new, vast online library so that they can more easily create new works that readers will value.

The Opposition

Opposition to the settlement falls into several broad categories.  We’ll address two important objections in this Executive Summary.

Objection #1:  Copyright doesn’t permit a system that asks authors and publishers to specifically exclude their out-of-print works from uses negotiated on their behalf.

This simply isn’t so.  There is ample precedent around the world for dealing with market failures in copyright in precisely this way.  For example, Germany today operates a system that nearly parallels the one the settlement would put in place.  The German system allows for

(a) routine copying of out-of-print works written by foreign and domestic authors,

(b) including routine copying of “orphan” (unclaimed) works, and

(c) without regard to whether those authors and publishers have expressly approved those uses.

The German system, however, actually denies authors and publishers any ability to exclude their works.

The German system goes even further, allowing the copying of in-print works without the permission of the author or publisher (in our settlement, the author and publisher must both approve of any displays of in-print works).  Germany’s photocopy licensing system is perfectly legal, and meets with the norms of international copyright law.

In fact, this is the typical way for countries to deal with the market failure represented by the unlicensed photocopying of copyrighted materials, although many countries allow authors and publishers to exclude their works from such licensing.  Other countries with similar photocopy licensing systems include Australia, Canada, the United Kingdom and the Nordic countries, among many others.  The market for photocopy licensing often fails without intervention, because the transaction costs of the license, including the labor costs of the licensee, are simply too high relative to the value of the individual copy.

The inability to license out of print works to colleges, libraries and individual users presents a market failure on an epic scale.  Here, as with photocopy licensing, a major component of the transaction costs involve rights clearance issues.  Another impediment is the sheer scope of the project, and the capital and technological resources it demands.  This settlement, with a financially strong and sophisticated technology partner, addresses the market failure.  The societal value in bringing these works back to the market is incalculable, but until our settlement there was no practical way to do so.[4] 

Objection #2.  The settlement inappropriately permits the use of unclaimed (orphan) works.

No issue has been more misunderstood or misreported regarding this settlement than the unclaimed or “orphan” works issue.

The primary misconception is the size of the problem:  it’s much smaller than has commonly been reported, for several reasons.  First, finding the rights owner of a book is not as daunting as many seem to believe.  Books do not present the classic orphan works problem, photographs do.  Photographs, both in the physical world and online, often become separated from their identifying information.  This makes finding the rights owner a near impossibility.  Books, however, always contain author and publisher information, and there’s often a copyright registration record to help locate the rights owner.  Second, although a copyright-protected book may have been published as long ago as 1923, the vast majority copyright-protected books in our libraries are far more recent.[5]

Another major misconception is the failure to recognize that countries around the globe are already dealing with the orphan works issue in a productive way.  The photocopy-licensing systems in other English-speaking countries permit the use of orphan works.  This, as previously discussed, is a natural result of those nations’ attempts to cope with the market failure represented by unlicensed photocopying of copyrighted works.  As the licensing societies collect photocopy royalties and start to cut checks to authors, word spreads, quickly, and authors step forward to register themselves.  The pool of unlicensed works shrinks.  The licensing societies are duty-bound to actively seek out authors[6] for whom they have money.  Year by year, they locate more and more authors, and the orphan works problem diminishes further.

We have some experience with this, since we helped found and long provided financial support to the Authors Registry, an independent, non-profit, rights-payment agency.  The Authors Registry collects photocopy and other use fees from overseas, particularly from photocopy uses in the U.K., and pays authors in the U.S. the amounts due them.  A sample of our success in paying authors of out-of-print works last year suggests that we reach 85% of such authors.  The success rate of larger, more developed systems – such as that of the Authors’ Licensing and Collecting Society (ALCS) in the U.K. – demonstrates that even higher success rates are possible.  (The ALCS, representing more than 30,000 published writers, is an enthusiastic supporter of the settlement, for good reason.  They know it can work, because they’ve achieved great success finding and paying photocopy revenues to authors of out of print books.)          

Thus, this settlement presents a practical solution for the problem of orphan works for books.  When an author is identified, then requests for all kinds of other uses – for permission to use an excerpt from the author’s work, reprint it, or to translate it into a foreign language – can be relayed to the author or the author’s agent and acted upon.

The orphan works issue is far smaller, and far more tractable, than some objectors would have you believe. The settlement itself is a big part of the solution.

Conclusion

We urge this committee to recognize this settlement for what it is: the outstanding result of a rare and productive truce in the copyright wars, negotiated by strong-willed and pragmatic representatives of the author, publisher, and library communities and a sophisticated technology partner. To a dispassionate observer, we believe the solution presented by this settlement is how a rational, useful market for out-of-print books should operate in the digital age. The means of getting there, a class-action settlement, may be novel, but that shouldn’t distract us from the great good – for readers, students, scholars, authors and publishers – that this settlement accomplishes. Similar systems, inevitably, will develop around the world. This settlement doesn’t pre-empt congressional action, but there’s no need to act now, before we see how well this solution works in the real world. We suspect many of the concerns – including all of the major objections – will prove unwarranted as this settlement goes into operation. There’s no need to fix that which likely isn’t broken at all. Allowing this opportunity to slip through our grasp would be a tragic loss to all those who value the riches stored in our nation’s libraries.



[1] The Guild had its beginnings as the Authors League of America, which was founded in 1912 by a group of book authors (including Theodore Roosevelt, who served as the League’s founding vice president), short story writers, freelance journalists and a smattering of dramatists.  In the 1920s, the Authors League broke into two groups: the Authors Guild and the Dramatists Guild of America.

[2] Pearl S. Buck (1938) (who served as Authors Guild president), William Faulkner (1949), John Steinbeck (1962), and Isaac Bashevis Singer (1978).  One Guild member, Elie Wiesel (1986), has won the Nobel Peace Prize.

[3] Here’s the math: we expect the settlement to make at least 10 million out-of-print books available, which, at an average of 300 pages per book, represents at least 3 billion pages of professionally written, professionally edited text.  20% of that is 600 million pages of text available at every desktop computer in the U.S. as a free preview. (For comparison, Encyclopedia Britannica is about 44,000 pages in print form; Wikipedia’s featured articles total about 5,000 pages. All English Wikipedia articles, including stubs, total perhaps 3 million pages.)

[4] The impediments to making systematic use of the digital rights in out-of-print books are many, but they fall into two broad categories:

A. Rights clearance issues.  Here, there are three different obstacles. First, it may be unclear who controls the rights because no one knows whether rights to a particular out-of-print book have reverted to the author or not (most standard trade book contracts ask an author to demand a reversion of rights before the contract formally terminates and the rights revert to the author).  Second, it may be unclear who controls the digital rights for a particular out-of-print book, since many (but not all) older contracts make no mention of digital or analogous rights.  Third, it may be difficult to find the author or publisher who controls the rights, particularly for older works.  This is the so-called orphan works problem.  (More on this later.)

B. Digitization and presentation issues.  Here, the obstacles are capital and technological sophistication.  

The rights clearance issues are largely addressed in Attachment A to the settlement, which deals with author-publisher issues and was the result of laborious negotiations between author and publisher representatives, and through the operation of class-action law. 

The digitization and presentation issues have been handled with money and clever technology.  Estimates of Google’s costs in scanning, digitizing and building the technical infrastructure to support the display of millions of out-of-print books run to about a billion dollars.  (We have no special knowledge of Google’s costs.)  Part of the challenge for Google was to find an efficient way to scan library books without damaging them by flattening them onto the scanner’s surface.  It solved this through a patented technology that corrects for the distortions caused by the scanning of a book page that curves away from the scanner’s surface towards the book’s binding.

[5] This is because, for books published between 1923 and 1963, authors had to file renewal registrations to prevent their works from falling into the public domain. More importantly, the number of titles produced by the book publishing industry was far lower through most of the 20th Century than it was in its concluding decades.  The median age of a copyright-protected book in a U.S. library is far younger than many commentators assume.

[6] Publishers are sought out too, of course.  In some systems, such as in the U.K., different societies represent authors and publishers.  In others, such as in Australia and Canada, the same society represents both authors and publishers.

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