HathiTrust is an organization that will preserve works digitally and make them available to researchers. Why has the Authors Guild sued the HathiTrust? What is the likely outcome?

On its website, the HathiTrust is defined as "a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future." (See hathitrust.org/about#.) Open to institutions around the world, the HathiTrust is made up of more than 60 partner libraries.

It is estimated that HathiTrust members have scanned more than seven million copyrighted works to date for the repository. In June 2011, the University of Michigan announced that it would make available to its students and faculty for access and download works from the corpus that it had determined were orphan works. The university had a protocol for searching for an author and posting the name of a work for 90 days in order to determine whether it would deem the work to be an orphan. Several other schools joined the project. In September 2011 the Authors Guild filed suit, claiming that it had strong leads to authors and estates that hold copyright to the first 167 works listed by Michigan as orphan candidates. Then Michigan announced that it was suspending the program of determining which works were orphans, but it continues to host the seven million digitized works.

This litigation is proceeding with the same question as discussed regarding the Google Books settlement (see Q328): whether an association can sue on behalf of its author members. Authors groups from the United Kingdom, Canada, Norway, and Sweden have now joined as plaintiffs. While many U.S. universities participated in the Google Books project, including Harvard, Princeton, and Stanford, most allowed only books that are in the public domain to be scanned. Only a few schools have allowed Google to scan copyrighted works. Defendants countered, asking the federal judge to hold that the HathiTrust project is a fair use. The Library Copyright Alliance filed an amicus brief in the case (see infodocket.com/2012/04/24/ library-copyright-alliance-files-friend-of-the-court-brief-in-the-authors-guild-v-hathitrust-case/). The Authors Guild has responded that the reproduction of seven million works is not permitted by any statutory exception to the rights of the copyright holder. The litigation will be watched by informational professionals around the world.

The Digital Public Library of America (DPLA) is such a great idea. Why is it not progressing more rapidly? What problems has it encountered?

The aim of DPLA is "to make as much of the learning and cultural patrimony of the United States in the humanities, the sciences, the social sciences, and other areas of knowledge free and accessible to the citizens of the United States and around the world" (see nypl.org/blog/2011/11/07/digital-public-library-america). It is similar to the Google Books project, but it plans to be more comprehensive and unimpeded by commercial motives. One problem with DPLA is that it has not yet articulated a consistent and concise statement of its scope, but it is closer to developing a mission statement. It will begin with making available public domain works and digitized works from the Library of Congress and the National Archives. It will collaborate with Europeana (see europeana.eu/portal/), the digital library project that is aggregating some five million digital objects from European research libraries. The Sloan Foundation and Arcadia Fund have contributed five million dollars toward the DPLA. A version of DPLA is slated to be rolled out in April 2013.

While there are other problems that the DPLA is encountering, copyright is the major legal issue. Another aim of DPLA is to digitize cultural works that are still under copyright protection but which are out of print. It is the digitizing of copyrighted works that is causing most of the problems. DPLA has created a number of work streams, and one is the legal work stream that will deal with copyright. Whether the project can proceed beyond public domain and U.S. government publications will depend, in part, on what happens with orphan works legislation. The DPLA also is encouraging the Register of Copyrights to address mass digitization projects.

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