Eoin Purcell

Some People Who Are Smarter Than Me
Have been doing a great deal of thinking about the Orphan Works part of the Google Book Search Settlement.

Mike Shatzkin has a few posts on the issue. A slightly different take on the Google settlement hits onto the idea that exploiting the few titles (in percentage terms but still quite large group of titles) that could warrant a full scale print run would be very lucrative:

My hunch is that the biggest revenue generator across the entire load of copyrights that the settlement will liberate for at least the next ten years will be books printed in press-run quantities. Who ever thought that the biggest beneficiaries of the Google settlement in the medium term could be agents and packagers? If somebody has previously mentioned the possibility, I hadn’t noticed. It only occurred to me day before yesterday.

Cairns reminds me that our friend (and fellow Michael) Cader thinks that the chances of any real “gems” being found in this orphan pile are remote. Of course, things that are remote possibilities happen from time to time over enough occurrences, and there will be a lot of books liberated. Surely there are many, in the categories mentioned above and others, that will warrant a first printing of 3,000 or 5,000 or 10,000, or with the right packaging and promotion, even more than that. Even in these troubled times, there might be some additions to staff at packagers or publishers to sift through these opportunities. Assuming these deals are to be made by the Book Rights Registry, let’s hope they have an agent on the staff along with the database sales manager.

But then in his second post, More on the Google settlement, he realised he was in error:

Why was that element left out of the settlement? Did the negotiating parties even contemplate it? And exactly how useful is the “orphan” relief if this huge portion of the potential revenue (and public value) is omitted? Were the parties so fixated on electronic exploitation that they just didn’t notice this?

It looks like the need for Congress to act is about as urgent as it was before. The Copyright Office has long noted the need for Orphan Works legislation in a host of contexts and has been unable to goad our legislators to take the necessary steps. It had been my hope that the Google settlement cut the Gordian knot, but it would appear that the problem of true public access is a long way from being solved.

There’s more of course
It’s quite a pickle this settlement. Adam Hodgkins recently offered his thoughts on where he saw the ebook/digital book market and they are certainly worth reading. Most importantly he points to Apple’s role:

The position that Apple have announced for themselves is stylish, decisive and agnostic. Apple doesn’t mind whether books are based in the cloud as web resources, or shipped around the internet as book-specific file formats. Web-based books, digital editions and ebook file formats can all run easily on the iPhone if that is what is needed: “Open house, come over here and play”. That is the message from Cupertino. But Apple is also saying that if you want to trade these new booky gizmos on the Apple platform and sell them through the Apple e-commerce system, you will be expected to pay 30% of the gross to Apple. While you are at it you might as well call them Apps. In consideration for this courteous invitation, Apple will handle the transaction and any strictly necessary hosting fees.

Adam has also made some interesting points about which platform will won out pne where you use a device to download an ebook or one where you use and online service like GBS (Or Exact Editions).

In many ways though his post, Google Book Search and the Tragedy of the Anti-Commons, hit on what Mike stumbled on too though he didn’t quite raise it explicitly, discussing instead the foreign territory issue, which is for me and mst people outside of the US a bit issue:

There is a good chance that the Google Books Settlement is going to show us all how this tragedy of the anti-commons works out in the world of books. The Google project, which is backed by the American publishers and American Authors’s representatives should be (in my view will be) a wonderful resource for American universities, schools, public libraries and through them for American consumers. By 2011, if the Settlement is approved, at least 5 million out of print but not yet out of copyright [OOPnotYOOC] titles will be available to readers in the US market. This resource will have little opportunity to work so well for authors, readers and consumers in the rest of the world. The books will by and large not be available in the rest of the world (perhaps in American embassies?).

Where does all this leave us?
I suspect that there will be quite a lot of activity around the out of print but not yet out of copyright books that Mike Identified as the most lucrative. For one thing, there is money to be made and a good chance that no backflow will result. It would be wonderful if an agreement could be reached to cover what would happen if a rights holder cam out of the wood work many years later or even after a reasonable period of research was undertaken in an attempt to secure permission.

For another the technology to allow one off one copy printing will be spread much more widely over the next few years and that will put pressure on digital warehouses to serve these titles, especially if discovery of these titles gets easier.

So, all in all I think there are many questions to be answered here and no-one to really answer them. One thing is becoming clear though, Google are winning whatever happens, despite the settlement!

Watch this space, I don’t think the fat lady has begun to sing just yet!
Eoin

PS: And, if you are Irish, The Irish Times has a decent summary of what the deal will mean for Irish Authors.