[pd-discuss] Hathitrust locks public domain books; amasses scans from others, and gives full access only to partners members

[Peter B. Hirtle]

There is no question that having completely open public domain materials is the most desirable outcome.  That is one of the reasons why my institution has adopted a policy that allows free use of any public domain material that we may own.  Users are only charged if staff have to do something (such as digitize a work, or get a different file copy from digital storage).  Our policy is based in part of American law, which stipulates that slavish reproductions do not have a copyright in-and-of themselves.  Other jurisdictions, I believe, to provide protection for the act of digitization/reproduction itself.

We have only been able to digitize a miniscule a small portion of our holdings in the 20+ years that we have been involved with digitization.  One of our corporate partners can digitize in 6 months as much as we did over that entire period.  Yet there need to be clear policy obligations guiding the development of these contracts, as Javier suggests.  That is why the Association of Research Libraries developed a set of principles to govern the agreements with digitization vendors: see http://www.arl.org/news/pr/principles-4august10.shtml.  They stipulate that agreements should not be exclusive and that the public domain material eventually become free of all restrictions after a limited period of time.

Google fares pretty well under the guidelines - except for the last point.  It is, for example, contractually obligated to provide free access to all digitized public domain works.  How I wish the other BL publishing arrangements had such a requirement, or that we knew that at a certain point the BL scans would be made freely available!

Javier asked about the 15 year limit on restrictions on Google scans.  I first saw this in Virginia's amended contract: see http://blog.librarylaw.com/librarylaw/2010/03/virginia-makes-the-google-settlement-better-for-libraries.html.  I would have anticipated that Google would have amended the contracts of its other partners to mirror the terms in the Virginia contract.  However, with the failure of the settlement in the lawsuit against Google, the issue is now moot since the Virginia amendment is no longer valid (as per clause 8.4), and Google once again owns its scans into perpetuity.

Peter

From: pd-discuss-bounces at lists.okfn.org [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Javier Ruiz
Sent: Thursday, June 23, 2011 8:56 AM
To: Michael S. Hart; Public Domain discuss list
Cc: andrewrturvey; Roger Bamkin
Subject: Re: [pd-discuss] Hathitrust locks public domain books; amasses scans from others, and gives full access only to partners members

I think the issue here is not so much copyright but the mission of organisations that have some public interest and the interaction with business models. Just because something is in the public domain nobody has an obligation to spend money in bandwidth and storage to publish it, but if you are a public institution then you have to consider open access when you do.

The case of the Hathi trust brings the question of whether private institutions that take on a public interest mission should be bounded by some of the constrains that we would expect on public bodies. The Anglo-Saxon world is clearly moving towards a situation where support for public culture is increasingly not seen as a core duty of the State, but that of philanthropists and corporate sponsors. Public institutions are expected to generate private income, and private institutions take on public missions.

>From what people are reporting in this list, Peter seems right to point to the British Library as a much more problematic case than the Hathi Trust, with PPP deals that lock away digital works behind paywalls. Also, I would agree with Dingodog that saying that you can go and scan again is not viable. That is the fig leaf of many digitisation deals, but when you look at the study of costs involved in digitising all of EU culture by Nick Poole at Collections Trust, it becomes clear that EVERY (;-) digitisation effort has to be assumed to be a one off with a long term strategy for open access.

Here it may be useful to start with some norms  -- or an "open definition" for digital GLAMs -- as Jonathan proposed, although for us as an advocacy organisation these bottom up norms should be complemented with something we can propose as policy (top down). The more these norms are used in practice the easier it is to push for the policy with examples.

Having a policy besides a best practice manual or a definition is necessary for larger institutions. We have been told very clearly by people at the British Library that they do not have a coherent policy direction for digital other than in preservation. In the absence of policy via governors, managers just see digital as potential income, and favour dodgy PPP deals at least as avoiding upfront expenses, even if it means restrictions.

Many business models for digitisation (freemium, temporary paywalls, sponsorship, etc.) could be acceptable but they need to be shaped by clear policy obligations. These can range from avoiding sponsorship by companies with bad human rights records to ensure that exclusive deals will be based on cost recovery.

Making this happen, I am afraid, is going to take more than encouragement. I think the video is an excellent idea, but a multiple approach of positive encouragement, reputation embarrassment and outright political work is what works for change everywhere.

BL just announced a deal with Google for 250,000 books, which although better than Cengage or Brightsolid in terms of access is still problematic in that we don't know when the restrictions on the copies given to BL expire. We are chasing BL on this right now, but they say that Google signs generic deals and refuses to negotiate.

We would be very interested to know more about the 15 years expiration of Google deals in US and whether this applies to UK. I have checked the amendments to the University of Michigan/ Google contract but didn't spot that. A recent EU report recommends a maximum of 7 years for PPP deals, but in UK most deals are 10 years.

Javier

On 21 June 2011 11:23, Michael S. Hart <hart at pglaf.org<mailto:hart at pglaf.org>> wrote:

I'm not sure you CAN LEGALLY claim copyright in public domain matter,
perhaps depending on what country you are in AND value added. . . .


Michael S. Hart
Founder
Project Gutenberg,
Inventor of eBooks
Co-Founder
The World eBook Fair

6.55 MILLION FREE eBOOKS!
July 4 through August 4 @
http://worldebookfair.org
[Not Subtracting Duplicates]



On Tue, 21 Jun 2011, Matthew Mundell wrote:

> This does, however, highlight the beauty of the public domain: anyone can
> do anything with the work.
>
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