It appears that a court might be able to see some sense and stop Google digitising orphan works, according to a judgement today (source: Wired ). A US federal judge commented that whilst the agreement is good, it went to far.
The original agreement appears to have given Google the right to digitise and sell access to works with a certain portion made searchable and the bulk of any funds made from selling the book going to the author. This part of is a good thing in principle since the dominant media platform (and I am a book lover) is the Internet and digitisation means that books can be kept accessible for longer by publishers. Less well selling authors can still have readers getting their books. However, they also wanted to do the same to orphan works. That is the sticking point and rightly so.
Orphan works are works where the rights holder cannot be found as yet and they are an issue in publishing. Without the rights holder being found, the work cannot have anything done with it. As the judgement said the settlement “would grant Google significant rights to exploit entire books, without permission of the copyright owners.” (Source: PDF on Wired’s Threat Level blog).
The underlying principle of digitising books is to be lauded and is a good thing. If a book is out of copyright, then it is equally laudable to make it available online and in various forms.
An issue that comes out of this though is the fact that to succeed and make backlists work for publishers, the orphan works issue must be addressed. I did hear a plan mooted years ago to possibly put any funds into escrow if a holder really cannot be found. It is one method. Equally publishers and creators need to make efforts to find holders (though in some cases this may never be possible).
It is the challenge if publishing is to move on. At the moment, though, I am glad that this deal has not gone through, potentially giving Google a revenue stream from the orphans.
I’m sure that this judgement will be challenged and that there will be new attempts to carry on this work. However the original publishers need to make efforts to make the works available to all on a digital platform, sooner rather than later.