When it comes to digitizing older and orphan works, most of the copyright controversies I see cropping up have more to do with intellectual property issues than actual conflict. Which is about what you’d expect—any real litigation is going to be hammered out in court rather than in the public debate arena. But what happens when mass adoption comes about because of real immediate physical danger to said orphans? Are Drastic Lifesaving Measures in order?
The Publishers Weekly blog reports that the Royal Library of the Netherlands, the Koninklijke Bibliotheek, has recently digitized and made public a swath of old magazines published between 1850 and 1940. The rights on much of the contents are uncertain, but the Library has gone ahead and acted in what it considers the materials’ best interest. The physical magazines, most of them printed on cheap paper stock, are beginning to degrade from years of handling—by their reckoning, this is a use-it (or rather, scan-it)-or-lose-it situation. Rightsholders have been given an opt-out clause, but the Library apparently doesn’t feel that there’s time to fuss with legalities. And Managing Director Bas Savenije is up front about it:
[w]e want the public interest in access to this cultural heritage to prevail over the private interests of potential copyright holders.
The Bibliotheek has crunched the numbers to justify its actions. While their dilemma is inherently legalistic in nature, which makes it a social sciences issue, it reads like a seventh-grade math word problem:
They discovered an average of 25 unique contributing authors per issue. Assuming each author has two heirs, the collection could represent at least 18,500 possible rights claimants; at a minimum of 30 minutes for each person, the KB could easily have spent over five years searching for rights holders for a collection that amounted to only about 1.5 million pages.
I’d be interested to see if this results in any kind of civil action, and where it comes from. I always think of Europe as being generally less litigious than the U.S., but the EU Orphan Works directive didn’t end up being particularly progressive either. The Koninklijke Bibliotheek’s actions look a bit like whipping out the defibrillator in spite of a Do Not Resuscitate order, but it may play out to be a whole lot less dramatic than it would be, say, here.
(The graphic is from the Koninklijke Bibliotheek’s announcement. It says: “Do you want your work online?” and “Let us know!”)