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Archivist raises questions about copyright 

By Karen Herland

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When Google entered into an agreement in 2004 with a number of libraries to digitize their collections and post them online, some authors questioned the premise of the deal.

On the surface, “the impetus to make the material available is laudable,” says Nancy Marrelli. As director of the university’s archives, a writer and publisher (she is co-publisher of Véhicule Press) and chair of the Canadian archival community copyright committee, she has numerous stakes in the discussion.

However, as she recently argued in a CBC radio interview “the scope of this agreement is larger than what the parties have a right to contract about.”

On the one hand, it is not clear that libraries can turn over the rights for the contents of their stacks. “If you buy a book, you own the physical book, but not the intellectual property inside the book,” she points out. That question was addressed in a legal decision last year, and individual authors can now choose to opt out of the system, or be compensated.

Much more disturbing, from an archivist’s perspective, is the fact that Google and a group representing publishers and authors also included “orphan works” in their agreement.

Orphan works are publications, photographs, diaries, personal papers or similar materials whose creators are unknown or untraceable. Copyright legislation defines a period of time, (usually after the creator of a work is deceased), before the work enters the public domain where it becomes is available to be used freely. If the creator is unknown or can not be found, it is impossible to clear the rights to use the work or to even determine the date from which the work is available for use.

Currently, a lack of policy on orphan works can stall projects or put users at risk of legal liability. Important historical material cannot be made available because there is no way to clear the rights.

Marrelli believes this is an important policy question that should be addressed by all those involved until a consensus is reached.

“We need legislation covering orphan works. It should be dealt with as a public policy issue rather than an agreement between Google and publishers — an agreement that is being made on behalf of people who can not speak for themselves.”

Marrelli gives the example of a film project on the residential school system in Canada. Some significant materials might not be available for use because the original creators or participants are unknown or cannot be located. For example, uncredited footatge of interviews with former residents or their families, or photographs abandoned in a rooming house or discovered in a junk store.

The inability to clear the rights to that material with the actual rights holder could stall the entire project.

Marrelli would like to see legislation that allows such projects to proceed with a clear demonstration of good faith and due diligence by the user in trying to track down potential rights holders. The terms of that due diligence would be laid out in the legislation.