The Book Industry and the Recording Industry Should Pay More Attention to Each Other’s Problems

Nashville Scene
Posted by Betsy Phillips
Fri, Sep 16, 2011

Two things are brewing in the world of copyright that could have major implications for both the book industry and the music industry. In the world of music copyright, there’s been a lot of hand-wringing over the fact that recording artists, thanks to changes in copyright law back in the ’70s, can now reclaim their rights to songs made in 1978.

Here’s a good article from the New York Times about it. But as you might imagine, record companies are sweating bullets (and tying things up in court) trying to keep songs like “Darkness on the Edge of Town” and “The Gambler” under their control and not back in control of the artists.

I have my eye on this because it seems apparent that this must become an issue for the book-publishing world as well. Granted, just by matter of statistics, most books published in 1978 have already had the rights revert to the authors, because the books went out of print long ago.

But look who all had books that came out in ’78. Some of those still make a pretty penny for their publishers. But is it so hard to imagine that Stephen King might want to self-publish The Stand now? That John Irving might want complete control over The World According to Garp? A famous author doesn’t have to market a popular 30-year old title. He just has to make it available and it basically sells itself. Sure, King and Irving probably have pretty cushy deals with their publishers at this point — but cushier than, “You get to keep all of the money after the cost of set-up?”

This is a big deal in the music world, and it has the potential to be a big deal in the book world with the same kind of devastating consequences for industries that depend on their backlist/back catalog for a certain level of ongoing, predictable sales. But I don’t yet see a lot of evidence that the book world is paying attention to this.

From the other direction, the book world is still struggling with Google’s decision, some years ago, to work with a handful of university libraries to digitize their entire collections. Since the basic definition of copyright is “the right to make a copy,” you can imagine that the lawsuits flew like a blizzard of starlings. Google and those university libraries have been trying, also for years, to come to some kind of settlement with rightsholders in order to be able to do something with all of the digital copies they have.

In the meantime, the libraries set up HathiTrust, as a place to house the digital copies (or at least the libraries’ copies of the digital copies) and now they’re trying to establish which books are out of copyright and which are “orphans” (an orphaned text being one where the rightsholders can’t be found). In the latter cases, instead of being protected by copyright, the work is trapped in obscurity by copyright, since no one can locate the rightsholder to get permission to make presumably wanted copies of it. Publishers are making an effort to bring those orphaned books back before the public.

Except now The Authors Guild is suing, claiming that, because of Google and the libraries’ unlawful actions in creating the files, they can’t be trusted to lawfully administer the files — and therefore shouldn’t be able to do so until who actually owns what is sorted out, and Google and the libraries have affirmative permission from rightsholders to use their material, not just “you can opt out if you find out about it and if you don’t like it” assumed permission.

Is The Authors Guild right to be worried? They’re having such an easy time tracking down the rightsholders of some of these orphaned works (ironically enough by using Google) that it does make you wonder if the folks at HathiTrust are being careful or if they know enough about the industry to do this task.

This appears to have real implications for the music industry too. Think of all these old records sitting out there, made by labels long absorbed by someone else. What happens if some entity — say, Google — decides it’s just too hard to bother with figuring out who owns the material, so they just start making it available to people? It could be a replay of the Napster maelstrom, except in much murkier legal terrain.

Sure, there will be lawsuits. But there are lawsuits over the Google/Library ebooks, and yet they still exist and a lot of them are searchable and some publishers are just finding it easier to acquiesce to HathiTrust’s terms. As soon as a settlement happens, they’re ready to acquiesce to Google’s terms in order to make the ebooks available than to fight with them. The same could be true of the music industry.

Oh, but what institutions have a music library as deep and comprehensive as university book libraries, you ask? How could Google have another opportunity to make or acquire copies of huge amounts of copyrighted material? Who would go along with Google and risk the level of bad will these libraries have generated?

What if Google learned its lesson about involving libraries. What if, instead, it invited individuals to upload their personal music collections to Google’s cloud? How hard would it be then for Google to search its own servers for works it considers out of copyright or to be “orphaned?” It could then turn around and sell those to consumers.

Just in case you think this could never come to pass, Google Music is in Beta now and it is inviting participants to upload their music collections to Google’s servers.

One would like to think that the music industry could trust them to do nothing with those files but play them back to the person who uploaded them. But the music industry might consider what the book industry is going through right now before feeling too confident about Google’s continued good behavior.