It’s never been done in this country, but extended collective licensing, a staple of mass digitization projects in northern Europe, is a step closer to making its way to our shores. The licensing regime, also known by its acronym ECL, enables the use of entire categories of works (e.g., all books) without requiring the user to negotiate individually with every rightsholder. Rather, licenses for all works in the category are offered, with the exception only of certain works where individual rightsholders expressly opt out. Such an arrangement is especially useful in the mass digitization context, where the cost of negotiating individual licenses for the many works involved is often prohibitive. The U.S. Copyright Office, in the wake of its Report on Orphan Works and Mass Digitization, has been collecting comments from the copyright community on the administration of an ECL “pilot program” covering literary works, among other things.
You can read the Authors Guild’s comments in the document below.
In our comments, we stipulate that digital copies of books already digitized by Google and used in Google Book Search and by HathiTrust should be eligible for the pilot. We also recommend limiting the class of books at issue to out-of-commerce books for research use, so as not to interfere with existing digital markets. And importantly, authors and other rightsholders would be able to opt out of the license on a wholesale basis or at the level of the individual book.
Research is increasingly moving online, and we owe it to both our past and our future to make sure the best of our culture is available there. We think an ECL solution to mass digitization is the best way to make that happen, because it’s a win for all. The public would get online access to the entirety of immensely valuable works of science and imagination—not just the snippets offered by Google. Authors would get access to a much-needed revenue stream in an era where fair pay is harder to come by than ever. And libraries and other institutions would be able to more fully reap the benefits of their digitized collections and more effectively fulfill their missions in the digital era.
At this point, many details are to be determined, but we’ll be at the table to make sure that authors’ interests are represented. In the meantime, we’re encouraged by the Copyright Office’s affirmation that ECL is “the best answer to solving the mass licensing that is inherent to mass digitization."