From Digital Koans:
France has implemented a new law on the Digital Exploitation of 20th Century Unavailable Books.
Here’s an excerpt from the Library of Congress’ summary:
This Law adds a new chapter to the French Intellectual Property Code, comprising articles L.134-1 to L.134-9. Article L. 134-1 provides that an unavailable book is “a book published in France before January 1, 2001, which is commercially unavailable and is not currently published in paper or digital format.” (Id.) The Law creates a public database specifically dedicated to unavailable books, accessible at no charge, which will list these titles. . . .
After a book has been registered in the database for six months without any opposition, a collective management society approved by the Ministry of Culture will be authorized to grant a publisher a non-exclusive license for digital exploitation of the book for a period of five years, which will be renewable (art. L.134-3). . . .
In addition, the Law provides an exception for libraries. It states that the collective management society must authorize libraries that are accessible to the public to digitally reproduce at no cost and distribute to their patrons unavailable books, where a holder of the right to reproduce the work in its paper format has not been found within ten years of the first authorization to reproduce, provided that the library does not receive any commercial profit. If the collective management society refuses to grant such a right, it has to state the grounds for that refusal (art. L.134-8). The holder of the right to reproduce the work in its paper format may at any time request that the collective management society withdraw the right granted to a library (id).
[Via a Creative Commons License]
Good. Copyright should be for a vastly shorter term and it should also be contingent on a work being available in some form.
Right now there are literally millions of works that were published, printed or recorded in the past that are not commercially or freely available in any form.
If you want or need access to them the entire burden is on you to find the rights-holder or even the rights-holder’s heirs and obtain permission to read or use these ancient lost works. This could be prohibitively expensive or even, in my cases, impossible.
Should you make use of some ancient unavailable work and then somebody pops up and says “Hey, I’m the heir to heir of the original creator and I own the rights” you could be liable for the absolutely mind-boggling damages and criminal penalties that the content industry has paid our legislators to enact.
We can mock the French for a lot of things. But at least they actually care about making their culture accessible.
Unfortunately, “unavailable” in this law means any book published prior to 2001 that’s out of print–even if it is still in copyright, and even if it is not an orphan work.
This law goes far beyond a remedy for the orphan works problem, or a corrective for over-long copyright terms–it amounts to a rights transfer on a massive scale. Authors who want to continue to control their rights (for instance, to self-publish their out of print books) have a tiny window of time to protest inclusion of their books in the database, and little recourse if they miss that window (and how or even whether they’ll be notified that their works have gone into the database is far from clear). Moreover, the law empowers the database administrator to transfer digital rights to publishers without consulting authors.
This is a giant win for publishers, and a big loss, potentially, for authors. By forcing authors to opt out, it also turns copyright law on its head. French authors and artists are protesting the law. Unfortunately it doesn’t seem to be getting a lot of attention outside of France.
See my blog post for more detail and discussion.
So why not solve the serious issue Binko highights, by simply maintaining a central online register of books still in copyright?
Publishers could contribute to it as titles are published (Amazon, Smashwords etc. could do the same automatically for self-pubs), and lawyers could update the register as creative rights are specifically willed or assigned to others.
This wouldn’t be perfect, but at least it would give researchers a “last point of contact” where they could begin.
Failure to update the register could be a legal factor in any subsequent suits.