Exploiting orphans

When Google starting scanning books, most people were for it. The idea was simple: Google wanted you to be able to search 'offline' content - that great resource of knowledge sitting in libraries - as well as the web.

And so, starting with a few university libraries, Google Book Search's teams dragged dusty tomes down from shelves and began scanning.

The idea was that Google would index the contents, making them searchable, but present just a snippet or abstract when you made the search. If you wanted the full text, you could head off to a library in the traditional fashion. In that way, what Google was doing fell under 'fair use' provisions in copyright law. And it all seemed like a terribly good idea.

But that's not where we've ended up. Google is now looking at a potential goldmine, exploiting other people's work.

Tell it to the judge

The whole process has been mired in lawsuits, and the prospect of those suits being resolved has created even more of a stir.

Some people were never happy with what Google was up to. The Author's Guild, the American Association of Publishers and a bunch of publishers brought an action against Google, saying that what it was doing didn't fall under fair use provision. Google has now come to an agreement with these people which would not only let it carry on, but would give Google an effective monopoly on exploiting e-book versions of the texts.

Authors and publishers can register at Google Book Settlement. Once they've 'claimed' their own books, they can either ask Google to pay them a royalty on any monies it makes, or they can have their books removed from the system.

(Incidentally, call me a conspiracy theorist if you like, but why does the login system on that site fail to work properly when I use Firefox or Opera on my Mac? I ended up having to use Safari. It couldn't be that they're trying to make claiming books difficult, could it?)

This business has left a lot of authors and publishers very unhappy. It's all very well Google settling with the original claimants, but that leaves a lot of rights owners who haven't agreed anything and whose works Google will nonetheless exploit. Now the case is being referred to the US Justice Department for potential anti-trust implications.

The problem with orphans

In common with other forms of intellectual property (IP) exploitation, the really sneaky part of all this has to do with orphans. 

In IP terms, an orphan is a 'work' (a book, say, or photograph) which would normally have the protection of intellectual property laws, but where the IP owner cannot be identified or traced.

As the current proposals stand, Google would have an e-book monopoly on any orphan titles it scans. It can sell them and pocket all the profit. It could, in effect, censor books by simply not offering them for download.

And for a book to be classed as an orphan, it simply needs to be unclaimed by the rights holder. This is entirely the wrong way around.

Works without parents 

Books aren't the only entities threatened by witless orphan works legislation. There have been numerous attempts to push an orphan works bill through Congress in the US which would significantly affect photographers.

In essence, such legislation would stipulate that anyone who comes across a photograph that has no identifying information attached as to the copyright owner, can use that image freely after making a reasonable effort to ascertain whether it's copyright protected. Quite what amounts to 'reasonable' is still a moot point.

Photographers try to protect digital images by embedding information in, for example, the IPTC and EXIF metadata of the image. But these are too easily stripped (and some image-sharing websites strip this data automatically). And digital images are easily stored, transmitted and shared. Once an image is out there, it's hard to control where it goes.

There is talk of establishing privately run databases of images. It would be up to each photographer to submit images to these registries. If someone finds an image, contacting and searching these registries would be deemed a 'reasonable' effort.

This is wrong on so many levels.

First, it puts the onus on the image creators to take that extra step - which would almost certainly involve cost - to obtain something they already own: copyright protection. In most places in the world, an image creator automatically owns copyright in the work. But under this kind of scheme, that copyright would be practically worthless unless you pay some private organisation a fee. This is known as a protection racket.

The registries provide no extra value - they would be simple parasites living off the work of others.

Burden of proof

And the same is true of Google and its e-book monopoly. It should not be able to assume that it can exploit a work just because it doesn't know who owns the rights.

This whole attitude is approaching copyright from the wrong direction. Given that copyright is created automatically, we should have a system whereby it is assumed that a work is rights protected. The onus should not be on the rights owner to take extra steps (and possibly incur cost) to protect their natural and automatic rights. The onus should be on the organisation that wants to exploit that work to prove that there is no hindrance to doing so. If they can't establish that proof, then don't exploit the work.

The Internet is already awash with parasites - such as bloggers leeching images from other sites. This Google settlement and the putative orphan works bills would institutionalise this parasitic behaviour, and would be another nail in the coffin for those who wish to make a living from creative work.