In 2011, the ruling in a U.S. court case, Authors Guild, Inc. v. HathiTrust, set a precedent in copyright law by protecting the digital archives produced by libraries for preservation purposes under fair dealing. While the European Copyright Directive allows for the mass digitization of orphan works for non-commercial purposes, in Canadian copyright law the dissemination of such works is subject to the approval of royalties by the Canadian Copyright Board after a “reasonable” search for an unlocatable copyright holder. Commercial mass digitization projects, such as Google Books, have entered into agreements with both European and American publishing guilds. Between the library and the media company, a French digitization project for out-of-print books under copyright circumvents both fair dealing and publishing agreements in an approach that may resolve the question of how to balance “copy-right” with “democratic accessibility.”
In his seminal paper on the eighteenth-century book trade in France, “What is the History of Books?” (1990), Robert Darnton describes the life cycle of a book as a “communications circuit”: a stadial model that maps the material history of books from its author to its readers and emphasizes the actors involved in its production. Darnton’s model (and the dozens which followed) laid the ground work for the discipline of book history. While the discipline itself has recently come under fire by its own proponents for the way in which its emphasis on the material subject imagines a projected network of actors, this stadial model has influenced how we study the history of books.
Two decades of book history studies can be organized under a series of categories which correspond to the steps in Darnton’s communications circuit: studies of authorship; studies of publishing, its economy, and its materials; and studies of reading and readerships. Copyright, however, does not figure in this model. Or in that of Adams & Barker (1993), whose alternative but equally influential model for book production emphasizes the “whole socio-economic conjecture” — the intellectual, political, legal, and commercial influences on the book trade — over individual actors. Copyright is absent from these schemas due to the way in which it resists categorization. For those who have studied and written about copyright and the book trade, the political and economic pressures and legislative changes which structure copyright readily affect authors, publishers, booksellers, and readers. Copyright determines the price and availability of books, while it also creates a market for pirated and foreign reprints. Copyright both shapes a freely available public domain and protects a national literary canon.
If we were to place “copyright” or “the public domain” within Darnton’s communications circuit, it would belong along the dotted line that connects the “readers” of a book with its “author.” In this space of reception, the linear trajectory of a book’s transmission breaks down through the free circulation of books among readers and authors, who are also readers. More importantly, this model does not consider the temporal dimension of a book’s reception after publication. Without taking into account the longer history of books, book history studies are quick to disregard the titles and volumes which defy this model of transmission — the used books, rare books, and out-of-print books which have populated the shelves of second-hand and rare book sellers. Copies, reprints, and facsimiles have not been considered to the same extent as the publication of new titles. Even in large-scale studies of literary production, reprints of older titles are routinely removed from the lists generated by the British Library’s English Short Title Catalogue (ESTC) or the American HathiTrust. Aside from a handful of studies concerned with mediation as opposed to the materiality of books — like Leah Price’s book, How to Do Things with Books in Victorian Britain (2012), which discusses the libraries of middle- and working-class readers who purchase and acquire second-hand books — this segment of the cultural record has been relegated to antiquarians and the copyright library.
In many ways, the discourse used by the relationship between copyright legislation and the public domain resembles book history’s miasmic treatment of a book’s reception. In her article on the copyright and the public domain in Canada, Carys Craig describes the relationship between the two institutions as dynamic rather than complementary and intrinsically related to creative uses. For Craig and other legal scholars, the link between copyright and cultural production remains elusive:
“The copyright system should be regarded as one element of a larger cultural and social policy aimed at encouraging the process of cultural exchange that new technologies facilitate. The economic and other incentives that copyright offers to creators of original expression are meant to encourage a participatory and interactive society, and to further the social goods that flow through public dialogue. [. . .] The public domain that is irreducibly central to the copyright system (Drassinower 2008: 202) protects the cultural space in which this happens.” (78)
In this context, copyright and fair dealing are both driven by a user-based economy in which access to materials both under copyright and in the public domain becomes an important issue. In their user’s guide to Canadian copyright legislation, Laura Murray and Samuel Trosow discuss the question of access in relation to the current copyright regime through alternative funding models. How can works be made available “without undue constraints to those members of the public who want to engage with it” (233) while also respecting the labor and rights of owners? Answering this question has become an imperative for any copyright economy in the wake of digitization and the possibilities it offers for the dissemination of rare and restricted materials to a larger audience. Fair dealing, Open Access, and Creative Commons licences are only preliminary answers to this question: they offer only a limited solution for unlocatable copyright holders.
Article 5(2)(c) of the European Copyright Directive provides an exception to copyright infringement for non-commercial archives and libraries, educational institutions, or museums, however this exemption is limited to specific acts of reproduction and only applies to orphan works, not out-of-print works (Borghi & Karapapa 12, 88). While orphan works are works for which the rights holders are unlocatable, due to lacking information, out-of-print works are published works that are no longer commercially unavailable. Out-of-print works are often still protected by copyright as rights holders or publishers have withdrawn these books from circulation for commercial or authorial reasons (cf. the French “moral right of withdrawal”). To compensate for the corpus of works that are no longer available either commercially or through fair dealing, France passed an act (loi n˚2012-287) which modifies copyright law to incorporate a mechanism regulating the use of unavailable works through mandatory collective management. The regulation of twentieth-century out-of-print works under copyright relies on two main elements: the Registre des Livres Indisponibles en Réédition Éléctronique (ReLIRE; Register of Unavailable Books for Electronic Republication) and a collective management organization (the Sofia). For the purposes of this discussion, I am most concerned with ReLIRE.
The register itself serves to inform authors, editors, and rights holders that their works may enter collective management. Through this mechanism they may see their works republished and made available without undue financial burden on the rights holders themselves. Since 2013, each year on March 21, the Bibliothèque nationale de France (BnF, France’s copyright library) publishes a register of 60,000 commercially unavailable twentieth-century books under copyright to enter collective management for electronic republication. The list is available online and authors, copyright-holders, and editors that hold copyright have six months to opt-out of the list. After September 21, the works on the list enter collective management by the Sofia and editors that hold copyright in print are offered a 10-year exclusive right to distribute the work electronically if they reply within two months. After this delay, editors that hold copyright but are unable to prove their claim, original editors that fail to respond to the initial inquiry, or editors that never held copyright originally may hold a 5-year non-exclusive right to distribute the work electronically. In all cases, editors are required to publish a digital edition of the work within three years. Authors may petition to have their works removed from the list at any time under France’s “moral right of withdrawal.” Editors who petition to have works removed from the list (whether before or after the September deadline) are then legally obliged to publish the work within two years. Once the digital edition has been republished, it is made available to readers through the publishers’ digital library and Gallica, the BnF’s digital library.
To understand how ReLIRE operates unlike fair dealing under Canadian copyright or the European directive on orphan works, two aspects of French copyright legislation should be considered:
- The loi n˚2012-268 which created ReLIRE relies on a blanket authorization to reproduce out-of-print works under copyright which places the burden of proof on copyright holders. However, authors, right holders, and editors who make themselves known receive remuneration from the Sofia on behalf of the publishers of the new electronic editions.
- “Le droit de prêt,” or the right to borrow, which describes the remuneration paid by libraries and other educational institutions when copyrighted material is borrowed by or distributed to patrons.
In as much as the rights of original copyright holders are upheld through ReLIRE, the way in which editors must prove they still hold the right to publish the unavailable work in print under the natural law system of copyright or “droit d’auteur” recalls William St. Clair’s description of sixteenth- and seventeenth-century copyright in England, when copyright was explicitly understood as the “right to copy”:
“The owners of manuscripts of the works of Chaucer, Langland, Malory, Gower, and of the other English authors who wrote before the arrival of printing, are unlikely to have realised that, by permitting them to be copied by print, they were allowing the creation of an intellectual property which others would then privately own in perpetuity. [. . .] For a time it seems to have been part of the cooperative arrangements within the print industry that the exclusive right to print and sell copies of a particular text lapsed when all the copies of a particular edition of that text had been sold out. [. . .] Gradually the implied private property in an out-of-print title seems to have become normally regarded as an absolute one, which continued dormant in the hands of the original printer and his or her heirs and assigns even if they were unwilling, or unable, to supply the market by reprinting. If, as happened in the eighteenth century with Milton’s prose works, a text had been so long out of print that no publisher could easily establish an ownership claim, a new property right could be established in a newly printed text.” (49-52)
Adams, Thomas & Nicholas Barker. “A New Model for the Study of the Book.” A Potencie of Life: Books in Society; The Clark Lectures, 1986-1987. London: British Library, 2001.
Borghi, Maurizio & Savroula Karapapa. Copyright and Mass Digitization. Oxford: Oxford University Press, 2013.
Darnton, Robert. “What is the History of Books?” The Kiss of Lamourette: Reflections in Cultural History. New York: Norton, 1990. pp. 107-36.
Craig, Carys. “The Canadian Public Domain: What, Where, and to What End?” Dynamic Fair Dealing: Creating Canadian Culture Online. Toronto: University of Toronto Press, 2014. pp. 65-81.
McGill, Meredith. “What’s the Matter with the History of the Book?” The Question of Relevance. McGill University: April 7, 2016. Lecture.
Murray, Laura & Samuel Trosow. Canadian Copyright: A Citizen’s Guide. Second edition. Toronto: Between the Lines, 2013.
Price, Leah. How to Do Things with Books in Victorian Britain. Princeton: Princeton University Press, 2013.
St Clair, William. The Reading Nation in the Romantic Period. Cambridge: Cambridge University Press, 2004.