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Re: Re. Hathi Orphans?

I fully agree with your analysis, Joe, and am well aware of the 
possibly divergent outcomes. However, and despite the possible 
majority of the "3rd category", we would reach a higher level of 
clarity in establishing rights. It could be also the basis for 
either a law or a court decision that would run roughly as 
follows: given that publishers have been asked to do this for X 
number of months or years, we can assume that anyone using now a 
book that has no known owner is not liable if an owner comes up. 
It will be equivalent to some form of "due diligence". Then, of 
course, if an owner appears, the book is placed back in the usual 
category of "books under rights", but without liability to the 
user if he/she desists immediately.

The devil is in the details and, very frankly, I have not thought 
through all the implications, but it seems to me that such an 
approach could gradually bring all books into either a clear 
orphan status, or would reveal the identity of the owner.

Obviously, I would rather see many Dukes. For the other, less 
generous, publishers, if they want money from the books they 
probably own, why don't they do it right now? If they don't, it 
is perhaps because they already know that this will not be a 
profitable proposition. Furthermore, it may that they like a 
murky and risky landscape because it serves them better than a 
clear one. But, if that is the case, the gradual clarification of 
the orphan field appears even more important.

Jean-Claude Guedon

Le vendredi 30 septembre 2011 Joseph Esposito a ecrit :

> Jean-Claude, be careful what you wish for.
> A publisher identifies the owner of an orphan work.  If that 
> owner is the publisher, does the publisher turn the rights over 
> to another entity?  Or does the publisher put the work on a 
> server, with a link to POD, monetizing the work if anybody 
> happens to come along?
> Some publishers (Duke just did this) will be happy to turn over 
> works that have no commercial value (at this time) to third 
> parties that share the publishers' mission.  Some will do the 
> equivalent of what the STM association has recently 
> promulgated: issue a statement of no commercial value so that a 
> third party can use the material, but control continues to vest 
> with the publisher.  And some publishers will seek to monetize 
> the property (for that is what it is) themselves.  There are 
> far more publishers in the third category.
> I happen to believe that publishers should research orphan 
> works and that they should have been doing this ever since the 
> possibility of low-cost distribution came on the horizon.  But 
> the outcome of such a practice may be very different from what 
> HathiTrust and other digitization projects envision.
> Joe Esposito
> On Thu, Sep 29, 2011 at 3:53 PM,
> <jean.claude.guedon@umontreal.ca> wrote:
>> This is a marvellous point. If publishers honestly 
>> collaborated on the task of identifying genuinely orphans, and 
>> if they also made an honest effort to let go what has no 
>> obvious economic value (in other words, get rid of the "just 
>> in case" mentality), we could work together far more 
>> harmoniously.
>> Jean-Claude Guedon
>> PS And bravo to Princeton for the OA policy voted by the faculty
>> on itself.