Rare Book Monthly

Articles - October - 2011 Issue

Making "Orphan Books" Available Digitally - the HathiTrust Inches Forward

The HathiTrust.

The HathiTrust.

Copies of so-called "orphan books" will slowly begin to make their way to digital access beginning this month, albeit in a most limited way. "Orphan books" are those that are still under copyright protection, but whose copyright holders are essentially impossible to find. Copyright law requires holder permission be obtained before a digital copy can be made available, but how can you get a copyright holder's permission if you can't locate him? It effectively bars millions of books, and the knowledge within, from public access, all to protect an owner who probably does not know or care about these rights, and suffers no loss from their digital publication. Indeed, with earlier publications, most of the original copyright holders are undoubtedly long dead.

Orphan books have been the primary issue behind the contentious Google Books Settlement litigation. During the past decade, Google began a process of scanning millions of books in university and public libraries, creating digital versions anyone with an internet connection could potentially access from anywhere in the world. Those published before 1923 are out of copyright and hence free to be published digitally or otherwise by anyone. Those published from 1923 onward are not so clear. Depending on a variety of factors, such as whether a copyright notice was printed, a copyright filed, or whether that copyright was renewed, that book may or may not currently be under copyright protection.

The most complicated class is that of books published between 1923 and 1963. There were more stringent requirements for maintaining copyrights in those days, including making a timely renewal (today, virtually any book published is protected for 70+ years even if the author makes no attempt to copyright it). A study by the Council on Library and Information Resources concluded that 55% of the 1923-1963 works are now in the public domain, or to put it another way, 45% are still under copyright protection. The CLIR also concluded that only 10% of books published in this period have copyright holders who can be reached. Indeed, half of the book publishers no longer exist, making it virtually impossible even to begin a search for copyright holders. In other words, 35% of all books published between 1923 and 1963 are "orphans." That is for books published in the U.S. They estimated 70% of non-U.S. published books from this era are "orphans." And, many post-1963 books have been orphaned as well.

When Google began making some of these orphan books available online without permission of the copyright holders, organizations representing authors and publishers sued. Google reached a settlement with them, whereby 63% of the proceeds of the sale of access would go to the copyright holders, or be held in trust for them until such time (if ever) they made themselves known. However, other authors, publishers, competitors, the government, and various other groups sued to block the settlement, saying no private agreement with representative organizations allows Google to publish copyrighted material without the actual copyright holder's permission. The Judge, in his initial ruling, appeared to essentially agree with this stance, but encouraged the parties to attempt to adjust the settlement so that it would meet with his approval.

Meanwhile, even as this battle with Google rages on, another source plans to begin making a few orphan works available digitally, though on a much smaller scale. This organization is known as the HathiTrust, and it is a consortium of around 50 institutional libraries. However, only a few plan to make orphans available at this time. The HathiTrust is an outcome of the Google digitization project. The universities have provided Google access to their books to be digitized, and in return have received digitized copies. While the universities are pleased with what Google has accomplished, they remain concerned about the long term. No one in the business or investment community is concerned about Google's long-term viability, but educational institutions think along a different time frame. They are concerned about Google 100, 200, even 1,000 years from now. Will Google still be around? Therefore, they want to be sure these digitized copies are stored somewhere forever. Indeed, "Hathi" is Hindi for "elephant," and as we all know, an elephant never forgets.

The HathiTrust has attempted to determine which books are orphans. About three months ago, it began publishing notice to holders of orphan copyrights that it would make digital copies of their books available in limited ways if they did not hear from them in 90 days. The first of these books will pass the 90-day mark this month and become available for digital publication. Among the small number of libraries that will begin to display such books are those of the Universities of Michigan, Wisconsin, Florida, California, and Duke and Cornell.

The HathiTrust accessibility to digitized books is not on nearly so a grand scale as at Google, which is why they believe they will avoid the legal problems Google has encountered. The digitized books will not be available to all institutions. Members will only be able to display books that they physically possess. Essentially, it is allowing patrons of the university to view books already in the library's collection digitally, instead of taking out the hard copy. It also has the enormously important added benefit of allowing for digital searches within the book, the ability to find terms in a fraction of a second, rather than thumbing through the entire book and still missing them.

The HathiTrust believes this more limited use, and their nature as a consortium of nonprofit institutions, will keep their program free from legal entanglements, although some objections have already been voiced. Copyright law provides for "fair use" exceptions where copying is permitted, and one of the factors in determining fair use is whether the material is being used for commercial or nonprofit educational purposes. This provision of copyright law places the HathiTrust in better standing than for-profit Google.

Access to orphan works still has a ways to go before the issues are ironed out, but one day, public access will carry the day. Knowledge can be held back for a while, but not forever. Congress could readily step in and resolve the issue, but Congress seems loathe to act on anything not backed by lobbyists and campaign contributors, so it may take some time. As John P. Wilkin, author of the CLIR report observed in his conclusion, "In nearly all cases, there is no economic harm to any person or organization in opening access to these in-copyright works, and there is a great loss in not providing access to them. Without an effective legal or policy framework that allows us to do so, a significant portion of our cultural heritage will be underused and undervalued." I hope my quoting his words fits within the boundaries of fair use!

Addendum: After this article was written, the Authors' Guild and certain similar overseas organizations and individuals filed suit to stop the HathiTrust project, including the copying and dissemination of orphan books, stating "the Universities are engaging in one of the largest copyright infringements in history." So much for this being an easy case. See the article on the Google Settlement elsewhere in this month's issue of AE Monthly for further updates on this controversy.

Rare Book Monthly

  • Sotheby's
    Fine Books, Manuscripts & More
    Available for Immediate Purchase
    Sotheby’s: J.R.R. Tolkien. The Lord of the Rings Trilogy. 11,135 USD
    Sotheby’s: Edgar Allan Poe. The Raven and Other Poems, 1845. 33,000 USD
    Sotheby’s: Leo Tolstoy, Clara Bow. War and Peace, 1886. 22,500 USD
    Sotheby’s: Sir Arthur Conan Doyle. Adventures of Sherlock Holmes, 1902. 7,500 USD
    Sotheby’s: F. Scott Fitzgerald. This Side of Paradise, The Great Gatsby, and Others, 1920-1941. 24,180 USD
  • Doyle, Dec. 5: Minas Avetisian (1928-1975). Rest, 1973. $8,000 to $12,000.
    Doyle, Dec. 5: Anna Vaughn Hyatt Huntington (1876-1973). Yawning Tiger, conceived 1917. $3,000 to $5,000.
    Doyle, Dec. 5: Robert M. Kulicke (1924-2007). Full-Blown Red and White Roses in a Glass Vase, 1982. $3,000 to $5,000.
    Doyle, Dec. 5: Pablo Picasso (1881-1973). L’ATELIER DE CANNES (Bloch 794; Mourlot 279). The cover for Ces Peintres Nos Amis, vol. II. $1,000 to $1,500.
    Doyle, Dec. 5: LeRoy Neiman (1921-2012). THE BEACH AT CANNES, 1979. $1,200 to $1,800.
    Doyle, Dec. 5: Richard Avendon, the suite of eleven signed portraits from the Avedon/Paris portfolio. $150,000 to $250,000.
    Doyle, Dec. 5: Robert Mapplethorpe (1946-1989). Flowers in Vase, 1985. $20,000 to $30,000.
    Doyle, Dec. 5: Edward Weston (1886-1958). Nude, 1936. $20,000 to $30,000.
    Doyle, Dec. 5: Edward Weston (1886-1958). Juniper, High Sierra, 1937.
    Doyle, Dec. 5: Steven J. Levn (b. 1964). Plumage II, 2011. $6,000 to $8,000.
    Doyle, Dec. 5: Steven Meisel (b. 1954). Madonna, Miami, (from Sex), 1992. $6,000 to $9,000.
  • Doyle, Dec. 6: An extensive archive of Raymond Chandler’s unpublished drafts of fantasy stories. $60,000 to $80,000.
    Doyle, Dec. 6: RAND, AYN. Single page from Ayn Rand’s handwritten first draft of her influential final novel Atlas Shrugged. $30,000 to $50,000.
    Doyle, Dec. 6: Ernest Hemingway’s first book with interesting provenance. Three Stories & Ten Poems. $20,000 to $30,000.
    Doyle, Dec. 6: Hemingway’s second book, one of 170 copies. In Our Time. $15,000 to $25,000.
    Doyle, Dec. 6: A finely colored example of Visscher’s double hemisphere world map, with a figured border. $12,000 to $18,000.
    Doyle, Dec. 6: Raymond Chandler’s Olivetti Studio 44 Typewriter. $10,000 to $20,000.
    Doyle, Dec. 6: Antonio Ordóñez's “Suit of Lights” owned by Ernest Hemingway. $10,000 to $20,000.
    Doyle, Dec. 6: A remarkable Truman archive featuring an inscribed beam from the White House construction. $8,000 to $12,000.
    Doyle, Dec. 6: The fourth edition of Audubon’s The Birds of America. $8,000 to $12,000.
    Doyle, Dec. 6: The original typed manuscript for Chandler’s only opera. The Princess and the Pedlar: An Entirely Original Comic Opera. $8,000 to $12,000.
    Doyle, Dec. 6: A splendidly illustrated treatise on ancient Peru and its Incan civilization. $7,000 to $10,000.
    Doyle, Dec. 6: A superb copy of Claude Lorrain’s Liber Veritatis from Longleat House. $5,000 to $8,000.
  • High Bids Win
    Letterpress & Bindery Auction
    Nov. 20 – Dec. 5, 2024
    High Bids Win, Nov. 20 – Dec. 5: Book Press 10 1/2× 15 1/4" Platen , 2 1/2" Daylight.
    High Bids Win, Nov. 20 – Dec. 5: The Tubbs Mfg Co. wooden-type cabinet 27” w by 37” h by 22” deep.
    High Bids Win, Nov. 20 – Dec. 5: G.P.Gordon printing press 7” by 11” with treadle. Needs rollers, trucks, and grippers. Missing roller spring.
    High Bids Win
    Letterpress & Bindery Auction
    Nov. 20 – Dec. 5, 2024
    High Bids Win, Nov. 20 – Dec. 5: D & C Ventris curved wood type 2” tall 5/8” wide.
    High Bids Win, Nov. 20 – Dec. 5: Wood Type 1 1/4” tall.
    High Bids Win, Nov. 20 – Dec. 5: Quarter Case with Lead Triangles.
    High Bids Win
    Letterpress & Bindery Auction
    Nov. 20 – Dec. 5, 2024
    High Bids Win, Nov. 20 – Dec. 5: Page & Co wood type 1 1/4” tall 1/4” wide.
    High Bids Win, Nov. 20 – Dec. 5: Awt 578 type hi gauge.
    High Bids Win, Nov. 20 – Dec. 5: Quarter Case with Lead Penline Flourishes.
    High Bids Win
    Letterpress & Bindery Auction
    Nov. 20 – Dec. 5, 2024
    High Bids Win, Nov. 20 – Dec. 5: Quarter Case with Lead Penline Flourishes.
    High Bids Win, Nov. 20 – Dec. 5: Quarter Case with Lead Cents and Pound Signs.
    High Bids Win, Nov. 20 – Dec. 5: Wooden type cabinet 27” w by 19” d by 38” h.
  • ALDE, Dec. 11: ALBINUS (BERNHARD SIEGFIED). Tabulæ Sceleti et Musculorum corporis humanum, Londres, 1749. €4,000 to €5,000.
    ALDE, Dec. 11: BIDLOO (GOVARD). Anatomia humani corporis. Centum et quinque tabulis per artificiosiss. G. de Lairesse..., Amsterdam, 1685.
    ALDE, Dec. 11: BOURGERY (JEAN-MARC) – JACOB (NICOLAS-HENRI). Traité complet de l’anatomie de l’Homme comprenant la médecine opératoire, Paris, 1832. €4,000 to €5,000.
    ALDE, Dec. 11: CALDANI (LEOPOLDO MARCANTONIO ET FLORIANO). Icones anatomicae, Venice, 1801-14. €5,000 to €6,000.
    ALDE, Dec. 11: CARSWELL (ROBERT). Pathological Anatomy. Illustrations of the elementary forms of disease, London, 1838. €5,000 to €6,000.
    ALDE, Dec. 11: CASSERIUS (JULIUS) [GIULIO CASSERIO]. De vocis auditusq. organis historia anatomica singulari fide methodo ac industria concinnata tractatis duobus explicate, Ferrara, 1600-1601. €4,000 to €5,000.
    ALDE, Dec. 11: ESTIENNE (CHARLES). De dissectione partium corporis humani libri tres, Paris, 1545. €8,000 to €10,000.
    ALDE, Dec. 11: GAMELIN (JACQUES). Nouveau Recueil d'Ostéologie et de Myologie dessiné d'après nature... pour l’utilité des sciences et des arts, divisé en deux parties, Toulouse, 1779. €6,000 to €8,000.
    ALDE, Dec. 11: ROESSLIN (EUCHER). Des divers travaux et enfantemens des femmes et par quel moyen l'on doit survenir aux accidens…, Paris, 1536. €3,000 to €4,000.
    ALDE, Dec. 11: RUYSCH (FREDERICK). Thesaurus anatomicus - Anatomisch Cabinet, Amsterdam, 1701-1714. €3,000 to €4,000.
    ALDE, Dec. 11: VALVERDE (JUAN DE). Anatome corporis humani. Nunc primum a Michaele Michaele Columbo latine reddita, et additis novis aliquot tabulis exornata, Venetiis, 1589. €2,000 to €3,000.
    ALDE, Dec. 11: VESALIUS (ANDREAS). De humani Corporis Fabrica libri septem, Venetiis, 1568. €3,000 to €4,000.

Article Search

Archived Articles

Ask Questions