That is, indeed, the question being posed in the latest court case to be tabled in New York. Along with the US Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ) and 8 individual authors have submitted a copyright infringement case against the HathiTrust (a partnership of over 50 predominantly university libraries), the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. The case asserts that the partners of the HathiTrust:
… obtained from Google unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors in dozens of countries. The universities have pooled the unauthorized files in a repository organized by the University of Michigan called HathiTrust.
The plaintiffs further assert that the HathiTrust partners’ intention to make available copies of in-copyright works that they have deemed to be orphan works oversteps the boundaries of copyright law. The plaintiffs seem to be arguing against that the HathiTrust’s understanding and determination of what constitutes an orphan work and, thus, what can be done with such works as a result. (The Association of Research Libraries has responded by compiling a useful run down of some of the issues relating to orphan works which makes things a bit clearer.) At present, copyright law seems to be lagging woefully behind when it comes to dealing with digital, or digitised, works.
“This is an upsetting and outrageous attempt to dismiss authors’ rights,” said Angelo Loukakis, executive director of the Australian Society of Authors. “Maybe it doesn’t seem like it to some, but writing books is an author’s real-life work and livelihood. This group of American universities has no authority to decide whether, when or how authors forfeit their copyright protection. These aren’t orphaned books, they’re abducted books.”
The language used by the plaintiffs involved in the case is very emotional which, I suppose, is understandable given that use of copyright material impacts on an author’s ability to receive appropriate income from their works.
“I was stunned when I learned of this,” said Danièle Simpson, president of UNEQ. “How are authors from Quebec, Italy or Japan to know that their works have been determined to be ‘orphans’ by a group in Ann Arbor, Michigan? If these colleges can make up their own rules, then won’t every college and university, in every country, want to do the same?”
The plaintiffs acknowledge that fair dealing allows some copying and reproduction of in-copyright works, but argue that the systematic digitisation of such a large number of works (approximately 7 million) surpasses the exceptions allowed for in fair dealing.
It will be interesting to see what else emerges in the court case to come.