RE: Re. Hathi Orphans?

["Anthony Watkinson" <anthony.watkinson@btinternet.com>]

This is just a footnote to Sandy's excellent note. My experience 
of scholarly contracts in the UK is that the rights were not 
actually reverted automatically when the book was declared OP but 
authors could ask for reversion i.e. the onus was on the authors 
to ask for the rights. The fact that this was the case in another 
jurisdiction or in the case of at least some publishers struck me 
as one defect from a publishers viewpoint in the original Google 
settlement under the terms of which (if I remember correctly) the 
assumption was that rights were in author hands when the book was 
OP.

Anthony

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher
Sent: 14 October 2011 00:39
To: liblicense-l@lists.yale.edu
Subject: Re: Re. Hathi Orphans?

The reality is that, until digitization came along, publishers
generally reverted rights to authors for book that went out of
print and no longer had any interest in their copyright status or
ownership. In that era, publishers had an interest only in
"orphan works" they wanted to reproduce portions of beyond fair
use, and they had no systematic interest in researching the
status of orphan works beyond those whose rights owners they had
a need to track down.  One complication during that era is that
some publishers were merged into others, or went out of business,
and the ownership status of works whose copyrights had not been
reassigned to authors before the merger or closure sometimes
ended up being murky.

The advent of digital printing in for the form of POD, together
with the creation of the "long tail" enabled by Google, changed
everything early in this new millennium. Publishers no longer had
much incentive to revert rights because, technically, no book
ever needed to go "out of print."  In fact, some publishers tried
to have reverted rights re-transferred to them again, so that
they could reissue books as e-books and/or in POD editions.
Those works for which the ownership status was murky required
research by publishers to determine if they had the necessary
rights to reprint them via POD or issue them in electronic form
(older contracts not having anticipated such a possibility). This
changed situation gave publishers new incentives to investigate
the status not only of works owned by third parties they wished
to use but works on their own backlists whose ownership status
was unclear. So, for the first time, publishers had a good reason
to do the necessary research more systematically than ever
before.

Some publishers that own rights to older works but don't want to
invest the money in digitize them are happy to have libraries or
other institutions do this work in exchange for allowing them to
be distributed open access. This is what the University of
California Press started doing a while ago through the California
Digital Library and what such presses as Duje and Pitt have done
more recently.

Still, it takes sometimes a considerable amount of effort to
determine whether a work is truly an "orphan" and many
understaffed and underfunded presses cannot afford to make this a
high priority. It is, in my opinion, therefore a welcome
development that some well-funded entity like the HathiTrust
should engage in this effort. Only it is imperative that the
research is done thoroughly and well, as the embarrassing
revelations from the Authors Guild have shown HT's process not to
be yet.

Sandy Thatcher