Steering an Elephant | Peer to Peer Review

There are two things I know about elephants. First, they have long memories. Second, they are large, ponderous beasts, and getting an elephant to move where you want it to go takes care, patience, and agility. The first of these two 'facts' is only a myth that stems from the long lifespan of the elephant. But it is that legendary memory that caused the HathiTrust to name itself with the Hindi word for an elephant (and a character from Kipling’s Jungle Book). As for the second characteristic of an elephant, it came in to my mind as I listened last month to reports about Hathi and marveled at the careful and meticulous work that is being done there to make public domain works accessible to the public. The elephant that is the HathiTrust is indeed being directed with patience and agility.  I was in Ann Arbor, MI, as a member of an advisory board formed as part of the IMLS-funded effort at Hathi to create a Copyright Review Management System (CRMS). This system has three aspects, each of which raises distinctive challenges and requires well-crafted approaches.  First, CRMS is trying to determine what works, published between 1923 and 1963, are in the public domain in the U.S. due to the failure to follow the then-required formalities of notice and renewal. About 300,000 books have been reviewed so far in this prong of the CRMS, and just over 50 percent have been found to be in the public domain. The review process is careful and includes multiple 'fail-safe' checks.  Even in the U.S., these determinations are not easy. One example that was described to us illustrates why multiple checks are needed. In the first level of review, reviewers (there are at least two at this level) concluded that Hemingway’s The Old Man and the Sea was in the public domain due to lack of a renewal of the copyright. Even though this conclusion proved incorrect, the process they followed was not flawed; at the second level of review it was discovered that the novella was originally published as a serial, and the renewal of the copyright was to be found in a different category of the Copyright Office’s confusing, Byzantine, and sometimes inaccessible records. Yet for every story like this of a mistake that is caught and corrected, the real story is the large number of books that no longer have copyright protection, and that Hathi has been able to make available to scholars and other readers. The complexities of determining the public domain in the U.S. are minor, however, when compared with those involved in decisions about works of foreign origin...  Two lessons for librarians and others concerned about the public domain are implicit in this.

First, it is possible for a book to have different terms, and hence enter the public domain at different times, in different countries...  The second lesson is that the work Hathi is doing with its CRMS project is truly librarians’ work, involving meticulous research and resulting in an important public benefit—greater access to our literary culture... Which brings me to the third aspect of the CRMS project, the effort to create a database of rights information uncovered by all this research...  Instead of getting on board, of course, the Authors Guild chose to sue Hathi, filing a silly lawsuit, in my opinion, that does not serve anyone’s interests, including the authors that the AG represents..."