Academic journal article Journal of Law, Technology and the Internet

Opening the Doors to Digital Libraries: A Proposal to Exempt Digital Libraries from the Copyright Act

Academic journal article Journal of Law, Technology and the Internet

Opening the Doors to Digital Libraries: A Proposal to Exempt Digital Libraries from the Copyright Act

Article excerpt

Table of Contents  I. INTRODUCTION II. THE PURPOSE OF COPYRIGHT LAW IN THE U.S III. COPYRIGHT LAW AND DIGITAL LIBRARIES    A. The Google Books Project    B. How Google Books Works    C. Opt-In vs. Opt-Out Systems    D. International Analysis of Orphaned Works Problem IV. DIGITAL LIBRARY EXEMPTION FROM COPYRIGHT LAW    A. Library Exemption as a Model for Legislative Change    B. Proposed Exemption for Digital Libraries V. POTENTIAL PROBLEMS WITH THE PROPOSAL    A. Administrative Problems    B. Economic Impact on the Market for Books VI. CONCLUSION 

I. INTRODUCTION

The primary purpose of copyright law is "to promote the Progress of Science and the useful Arts," (1) or in other words knowledge. To reach this end, copyright law grants authors temporary monopolies over the rights to their works, and thereby both rewards their efforts and promotes the creation of new works. (2) In the digital realm, however, copyright law obstructs the very purpose it was designed to promote. Copyright law hinders the advancement of knowledge in the

The development of the world wide web in the 1990s opened a floodgate of information access and exchange. (3) As a result, people across the globe now share information instantaneously and increasingly rely on the internet for information. (4) In response, an increasing number of digital library projects have developed. (5) A digital library is an "organized collection [] of informational items in digital format, accessible through computers." (6) A digital library can act as a hub for an almost limitless volume of information and, therefore, has the potential to provide a wide variety of public benefits. Such benefits include: (1) increasing the awareness of a particular work's existence, (2) reducing the search costs associated with finding a particular work, (3) protecting works from being lost due to physical decay, and (4) allowing for a much greater dissemination of the work.

Despite this potential, the development of large-scale digital libraries has been reduced to a crawl under current copyright law. (7) A large-scale or universal digital library must scan and include copyrighted works. In order to do so legally, such a library generally must choose between two options. It can either: (1) scan the books first and allow the authors to "opt-out" of their project or (2) ask for the authors' permission before scanning the books and allow the authors to "opt-in" to its project. (8) Practically speaking, the opt-out system is similar to a person walking into a library, scanning all the books, and then allowing any author who objects to having his or her work included in the digital library notify the person of his or her objection after the fact and request removal of the work. On the other hand, a digital library operating under the opt-in system will only digitize copyrighted works only after it receives approval from the authors. (9)

This Comment examines the problematic application of copyright law to digital libraries using Google's Book Search project as a case study. Google has set for itself the ambitious goal of scanning every book ever printed and creating a searchable database open to the public. (10) In order to do so, Google began scanning the books at certain university libraries and chose to use an opt-out system. (11) Even though the Google Books project captures the spirit and original purpose of copyright law, it very likely may conflict with the letter of the law. (12) Accordingly, and somewhat predictably, Google's efforts triggered a series of copyright infringement lawsuits.

In October 2008, Google reached a landmark settlement ("Settlement") with the Authors Guild and the Association of American Publishers. (14) The parties amended the Settlement in 2009 (15) to address additional concerns raised by the Department of Justice. (16) Under the terms of the amended Settlement ("Amended Settlement"), Google will pay 34. …

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