Reforming Copyright Is Possible - The Chronicle Review - The Chronicle of Higher Education

"The failure of the Google Book settlement, however, has not killed the dream of a comprehensive digital library accessible to the public. Indeed, it has inspired an alternative that would avoid the risks of monopoly control. A coalition of nonprofit libraries, archives, and universities has formed to create a Digital Public Library of America, which is scheduled to launch its services in April 2013....The DPLA aims to be a portal through which the public can access vast stores of knowledge online. Free, forever....Had Congress not bowed to pressure from industries with a stake in copyright, especially Hollywood, to extend existing copyright terms several times in the past 40 years, all works published before 1956 would now be in the public domain and available for inclusion in the DPLA....[F]air use can be part of the solution. Many orphans that nonprofit libraries want to make available online are fact-intensive works, written by scholars for scholars, whose motivation is to share knowledge. Insofar as such works are unavailable commercially and their rights-holders cannot be located, there is no risk of harm to any existing or potential market for the works, an important factor in fair-use cases....The fastest way to achieve a more comprehensive digital library is for Congress to create a license so that digital libraries could provide public access to copyrighted works no longer commercially available....At an abstract level, the licensing option seems attractive. It resembles the basic framework of the recently enacted French law authorizing the national library to digitize out-of-commerce works. However, France has at least three advantages over the United States....After the Google Book settlement failed, I outlined a legislative package in the Columbia Journal of Law & the Arts that would bring about virtually all of the benefits envisioned by proponents of the settlement without the downsides of a Google monopoly. In brief, I recommended: 1) creating a privilege to scan in-copyright works for preservation, indexing, and text mining of the works; 2) allowing orphan works to be made available on an open-access basis; 3) expanding the right of libraries and others to improve access for those who have trouble reading print; 4) ensuring that reader-privacy interests are respected....Copyright law needs considerably greater reform than the measures I've discussed. Copyright should be shorter in duration, more balanced, more comprehensible, and normatively closer to what members of the public think that it means or should mean. Although we are not likely to get comprehensive reform anytime soon, perhaps we can persuade Congress to make some more modest reforms. We know it is now possible for the cultural and scientific heritage of humankind to be made available through a universal digital library such as the DPLA. It would be a grievous mistake not to bring that future into being when it is so clearly within our grasp."