Thursday, October 06, 2011

I'm not orphaned yet!

In a lovely Monty Pythonesque moment of irony, the author of one of the University of Michigan's so-called "orphaned" works has poked his head up and declared himself alive and completely findable.  J. R. Salamanca, American author of Lilith has personally joined a lawsuit launched against the U of M's HathiTrust by the American Author's Guild. Also joining the suit today is The Writers' Union of Canada.

You can read all about The Writers' Union decision to join the suit in their press release here.

Here are a few choice quotes for those in a hurry:
The defendant universities have pooled the unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors worldwide, into an online repository called HathiTrust. In June, the University of Michigan, which oversees HathiTrust, announced plans to permit unlimited downloads by its students and faculty members of "orphaned" books (some consider works whose rights-owners cannot be found after a diligent search to be "orphans").

After a quick Google search, the Author's Guild was able to find a number of the so-called "orphans" who were about to have their property expropriated by the HathiTrust, including Mr. Salamanca.

“"How is it they couldn't find Jack Salamanca?" asked literary agent John White, who has represented the author for more than ten years. "He's a bestselling novelist, he's lived in suburban Maryland for decades, he's in the University of Maryland's current online catalog as an emeritus professor, and he signed an e-book agreement for "Lilith" four weeks ago. It boggles the mind."
“"These are major, well-funded U.S. research institutions capable of great things," said Greg Hollingshead, Chair of The Writers' Union of Canada. "They could have found most of these authors had they cared to, but it seems they didn't. They just wanted to release e-books for free. They don't take literary property rights seriously, so why should any of us trust their security measures? If they're hacked, and digital files of 40,000 Canadian books are released, how are Canadian authors ever again to receive significant revenues from those works?"”
Here in Canada, we are often told by the advocates of broad free use of copyrighted materials at universities that our established collective licensing system is too expensive and too difficult to implement. Now we cultural workers are also, apparently, too difficult to find... even when we live right next door.

Bring out yer dead!

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Pieter Hulshoff said...

It does appear that there was a lack of diligence in the search the UoM did here, and I'm sure they will be judged accordingly. Not that this invalidates the concerns surrounding orphaned works, but it does indicate that we need strict rules about what a diligent search entails.

John, what are your thoughts on a copyright registry, to make it easier to find the copyright holders of works? A check in such a database would be the least of the requirements in my opinion.

Sandy Crawley said...

@ Pieter,

I think a central registry is a good idea and I know it is being pursued in Europe.

Darryl said...

Sandy, are they really pursuing anything more than what already exists? I.E. voluntary registration to help prove ownership and be eligible for statutory damages. That would be very good, but it would go against Berne, so I see it as very unlikely.

To be useful for follow up creators and users, such registration should be mandatory, otherwise an expensive and time consuming search as well as possibly a trip to the local copyright board could still be necessary. If registration was mandatory after a few years, then the whole system would be a lot more efficient, and we could get far better use out of existing works.

Crockett said...

As much as I love technology, like anything else at times it fails. Of course technology is only a tool so how it's implemented is still the responsibility of the parties involved.

In this case I would have to agree with you John that it has been done poorly, I would even suggest purposely negligent. The rights of authors here do seem to in fact being appropriated due to lack of diligence, and that is wrong.

The bigger picture of Orphaned works and how best to deal with them is a larger issue. The purpose of copyright is to both protect the rights of creators and to enrich our culture. Where there is no way to find said creators (or who holds their copyrights) then such works I think should be freely used to the benefit of society.

Having said that, there should be a stringent requirement of accepted practice and due diligence in such orphan works searches. While current owners past works may be harder to identify, I see no reason a system should not be implemented to insure that future works are properly identified and owners appropriately compensated.

With today's technology that would be simple to do, if managed correctly.

Sandy Crawley said...


Can you explain how a registry of rights owners contravenes Berne?

I am always ready to learn....

Pieter Hulshoff said...


Berne (, Article 5.2:

The enjoyment and the exercise of these rights shall not be subject to any formality

This implies that they cannot require registration in order to enjoy copyright protection. Copyright registration must be a voluntary thing.

Darryl said...

'zackly. Thanks Pieter.

Berne is actually a hideous document written before there was any concept of personal copying. At the time it may not have seemed overly burdensome to require following creators to find authors and clear rights, after all these were generally all commercial affairs, and any that weren't never would have appeared on anyone's radar anyway. Also in the day it could well have seemed too cumbersome to require registration when there were so many countries with so many different systems, and no easy way to coordinate them.

Now of course the reverse is true. It should be a fairly straight forward matter to require authors to register SOMEWHERE in a timely manner, and life would then be much simpler for the other creators and users who are looking to use works in a less commercial way.

The whole LIFE+X system suffers the same problem of excessive complication as well. It is a pity no one has the balls to actually step forward and say how bad Berne is, opt out of it, and insist on a new system built from the ground up.

Unknown said...

Ah, yes, Berne. Berne is sadly outdated, and in need of a total overhaul. However the W.I.P.O. cannot be trusted to do so, it doesn't consist of artists.

As to the Hathi Trust being incapable of finding artists, I did an article a couple of years ago about the jokers who run one of the collection agencies in the United States. They had a huge list of artists which they couldn't find. I randomly selected five, and found them inside of two minutes using Google.

Rather than being incapable, they just didn't care to expend the energy to search was my conclusion.


Anonymous said...

This is the first I've read of this specific issue...frightening. While lack of due diligence or even negligence will continue to be problematic in similar situations, there should be some method of streamlining this process.

I agree that a standalone copyright registry would have to be voluntary, since non-inclusion could not be taken as an active withdrawal from copyright in any case.

Stepping into murky waters here, but could the ISO specification for the ISBN be revised to include further identifying information for the copyright holder? Building on an existing international standard with a parallel purpose would support adoption. Of course, this doesn't force entities such as Hathi to avail themselves of existing tools for this work.

Unknown said...


Considering that a lot of us now publish ourselves, and that if you check my ISBN it takes you to my publisher page on Collections Canada, which has my address and phone number, not being able to find me would fall under criminal stupidity. Of course criminal stupidity seems to pervade the copyright debate. Consider Barry Sookman, James Gannon, Minister James Moore, Steve Kane (President of Warner Music Canada) et al.

The idiots are in charge of the asylum.

Darryl said...

"I agree that a standalone copyright registry would have to be voluntary, since non-inclusion could not be taken as an active withdrawal from copyright in any case."


what's wrong with interpretting non-registrantion after say 5 year as giving up any copyright claim? The state is giving them a monopoly for pete sake, is it really to much to askthat they be required to identify who it is that is receiving it?

Unknown said...

What kills me is their inability to contact the publisher.

Hello! Front of the book. There's a page with the publisher's contact information. Why not check it? The publisher probably has current contact information for the writer.

Or is that too difficult?

Like using Google or Bing to find their website.

Some people work hard at imitating congenital idiots.


Frances Grimble said...

Um, there ARE registries of copyright owners in the Copyright Offices of the US and other countries.

And how exactly is it "more burdensome" to find copyright holders?

US books that are in print--and yes, some in-print books were discovered on the University of Michigan's so-called orphan list--are listed in Books in Print, which is online, many online booksellers such as Amazon, the online databases of industry wholesalers such as Ingram, and other industry sources.

Authors often have web pages, blogs, Facebook pages, Linkedin pages, entries in phone/address directories both in print and online, and in short are all over the place. The employers of authors, even ex-employers (such as universities where the author is an emeritus professor) also provide information.

Publishers often have web pages, blogs, etc. They are listed in industry references such as Literary Market Place.

Dead authors often have obituaries online, which gives lists of surviving family members.

Did I mention that the Copyright Office has put several decades of records online? Or that all can be searched in the Copyright Office?

Did I mention that there are professional copyright search services, who often act on the behalf of publishers who wish to reprint older titles?

Besides not online does NOT mean unavailable--for either books or copyright holders.

The message members of the Authpr's Guild and many others were giving the Hathi Trust was not that Hathi should crowdsource their copyright searches, but that contact information is pretty easy to find.

Frances Grimble said...


The US Copyright Office--where works are properly registered--is already overburdened. In my experience it always takes them nine months to issue a copyright certificate. I really doubt they want to re-register works every five years. Re-registration systems were already given up in the later 20th century, as too burdensome for both authors and the Copyright Office.

Unknown said...

Frances Grimble:

Due Diligence: A search carried out by an agency designed not to identify the clients of the agency that the agency owes money.

Or at least that is the Cynic's definition of Due Diligence.