Falling down before the finish

This article from the Guardian UK about how “Google Books deal forces us to deal with copyright” had me nodding in agreement, right up until its last few paragraphs.  Like author Nick Harkaway, I am cautiously relieved by the intervention from the Department of Justice that has forced a postponement of the hearing on the settlement in the Google Books copyright infringement case.  Harkaway expresses my feelings very succinctly when he writes that “it wasn’t the idea I objected to, but the method.”  As I sometimes put the same sentiment, bad law in the service of a worthwhile end can still create unfortunate consequences.  So I am hopeful that the extra time and renewed negotiations will lead to a more thoughtful implementation of the books project, perhaps less sweeping but also less monopolistic.

Harkaway also has my agreement when he expands his discussion to the problem of orphan works, and suggests that the Google Books deal gives added incentive to a broader, more generalizable solution for the millions of works still protected by copyright yet for which no rights holder can be found.  Harkaway embraces a familiar solution to this problem when he endorses renewed recourse to a renewal system.  Under this plan, rights holders would have to renew their copyright claim periodically in order to prevent the work from dropping into the public domain.  Thus orphan works would become free for use once a renewal period passed without action by the rights holder.    There are other ways to approach the orphan works problem, but it clearly needs to be addressed, and the renewal suggestion would be one very effective approach.

Unfortunately, I stopped agreeing with Harkaway right at the end of his article, when he suggested that data-mining and other new uses for copyrighted works should be sources of new income for rights holders.  This is an old mistake based on thinking that whenever new technologies enable new uses, a new right is created.  But copyright does not work that way, and there has never been a “use right.”  Copyright holders do not get the right to control every use of their work, and thinking about how such a right might work should tell us why — it raises a huge problem of censorship; imagine, for example a book author or film producer who could use copyright to prevent negative reviews.  Instead, rights holders get the exclusive right to control copying, distribution, public performance and public display, as well as the creation of derivative works. This is a lot of control, but these rights do not impinge on using a lawfully obtained copy, at least for private purposes like research.  Everytime a new technology comes along, however, some rights holders are seduced into thinking that they should gain from it, even if it does not implicate any of these exclusive rights.

If digital copies of the world’s books are legally created, through a Google settlement or in some other way, use of those copies for data-mining and other research uses will be, and should remain, free for all users.  It may sound plausible when Harkaway complains that Google will be improving its search algorithm using his work and making money from that improvement.  But where does a use right stop?  Should the heirs on John Updike be reimbursed if digital copies of his work are used to create a Updike concordance?  Should an academic who wants to study a certain grammatical construction across a huge range of published literature, a use contemplated by the Google settlement, have to pay the copyright owner of every book in the corpus for that opportunity?  It quickly becomes clear why a separate use right within the copyright bundle would be a very bad idea.  I can follow Harkaway through most of his article, but when he gets to those last three paragraphs, it is clear he has gone astray.