Dear Mr. Salamanca,
Earlier this week, only days after it filed its ill-advised lawsuit against the HathiTrust and five of Hathi’s partner universities, the Authors Guild gleefully announced that they had been able to find, with relative ease, the author of one of the books on Hathi’s initial list of orphan works. You, of course, were that author, and the work in question was your 1958 novel The Lost Country.
It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation. What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”
In one sense, your situation is quite unusual. Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement. This was unusual in the 1950′s, when federal copyright did not attach to a work until it had been published, and it is, unfortunately, still not the case for many authors, particularly those who write academic books. For many of them, rights must be surrendered in order to have a work published in the first place. So you are ahead of the game in that sense; you have a chance to really manage your copyright for your own benefit. Congratulations.
It seems clear that your book was included on the list of potential orphans in error. Of course, inclusion on that list was precisely intended to catch such situations, so the system worked as it should. Your book has not been included in any distribution of orphan works. Now you have a chance to decide, however, if you would like to allow a more open distribution.
I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies. We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity. So let’s think for a minute about The Lost Country and what might be best for it and for you.
The sad fact is that The Lost Country has become a pretty obscure work. Amazon.com shows only two used copies available for sale. In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage. It has not left the facility once since then, and our system shows no circulations in the prior decade, either. One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.
It has to be said that the Authors Guild is not going to help you in this regard. They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition. The Authors Guild simply does not have the ability to create a new market for your book. Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.
Where you can find help for this problem is with the HathiTrust. Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books. Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.
In your own case, let’s suppose a Duke student has recently seen the Elvis Presley movie made from The Lost Country. Intrigued, she “Googles” the book and finds that there is a copy held by our library. But to get it she has to send a request, wait 24 hours or so, then pick it up at one of the library service desks. Years of experience with college students suggests to me that most just won’t bother; they will move on to something newer and easier to access. On the other hand, if that same record that she found with her Google search also contained a link to the book through Hathi, she might read a chapter or two. She might get hooked. You will have found a reader.
This is what libraries do; such serendipitous discovery is what we hope for everyday, and it is why we signed up with the HathiTrust. What Hathi offers to you is the opportunity to continue to find readers for the book on which you worked so hard.
Your “case,” if I can call it that, illustrates two things. First, that the process of identifying orphan works in the Hathi corpus needs to be tested and refined, which Hathi is committed to doing. Second, in the rare instance like yours where the process actually turns up an author who does still own copyright, the rational course for that author is to embrace the mission of Hathi and of libraries everywhere of connecting books with readers, and to exercise their right to make their book(s) fully viewable. Please believe me, that is a much better option than having a book live out its term of copyright on hard-to-access shelves in high-density storage.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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