Unconditional Copyright
Removing the Camouflage
Denise Troll Covey
Principal Librarian for Special Projects
Erin Rhodes
Copyright Permission Assistant
Presentation to ALA Lobbyists
November 15, 2005
“Unconditional Copyright”
• No registration
• No renewal
– Fewer than 15% of copyrights were renewed
when renewal was required
• No circumvention
– Even if technologies or licenses disallow public rights
• “Limited” duration
– Published = 95 years or author +70
– Unpublished = 120 years
U.S. Copyright Camouflage
• Difficult to determine copyright status & ownership
– Copyright laws are complex
– Office of Copyright keeps no records of ownership
– Publisher records are not complete or easily accessible
• Estimate 92% of books ever published
are still in copyright, but out of print
– No revenue for copyright owners
– No easy access for potential readers
Research
• Seeking non-exclusive permission to digitize
& provide open access to copyrighted books
1999–2001
Feasibility study
2002–2003
Posner study
2003–2004
Million book project
Feasibility Study
1999 – 2001
• 368 random books in the library catalog
• 95% (351) were copyright protected
• 21% (76) were eliminated from the study
– Mistakenly cataloged as books (10%)
– Third-party copyright ownership (11%)
• Final sample was 277 titles
(209 publishers)
Feasibility Study
• Intermittent labor – 4 different people
• Process
– Initial request letters – sent 278
– Follow-up request letters – sent 246
• Over 60% of publishers received 2nd or 3rd letter
• Subsequent letters sent months later
• Did not track transaction costs
Overall Results
100%
27%
Permission granted
Permission denied
100%
75%
75%
23%
No response
50%
25%
• Mistakenly requested permission
for 4 out of copyright books
• 1 permission granted; 3 denied
•
• Data NOT included in graph
27%
25%
21%
0%
30%
50%
28%
Not located
24%
19%
0%
Publishers
Titles
78% publishers contacted
(81% of the titles)
100%
100%
35%
Permission granted
Permission denied
75%
50%
30%
75%
30%
50%
37%
No response
25%
0%
25%
36%
34%
0%
Publishers
Titles
51% publishers responded
(53% of the titles)
100%
100%
54%
Permission granted
75%
75%
50%
50%
45%
Restrictions applied to 68% of titles
Permission denied
25%
0%
Average 101 days for permission granted
Average 124 days for permission denied
46%
25%
55%
0%
Publishers
Titles
Restrictions Applied
• 54% access restricted to Carnegie Mellon users
• 23% display full citation
• 22% no 3rd party material
• 15% provide copy
• 15% not for sale
•
8% license to provide access expires
•
6% fee required
•
6% individual use only
•
3% permission to scan expires
Analysis by Print Status
• 73% sample was out of print books
– More difficult to locate, less likely to respond,
but more likely to grant permission if they responded
100%
In print
75%
Out of print
50%
25%
Response rate based on contacts
Success rate based on responses
0%
Sample
content
Not
located
Response
rate
Success
rate
Analysis by Publisher Location
• 19% sample was foreign publications
– Difficult to locate, but more likely to grant permission
100%
Domestic
75%
Foreign
50%
25%
0%
Sample
content
Not
located
Response
rate
Success
rate
Analysis by Publisher Type
• 68% sample was published by commercial publisher
– Most difficult to locate, least likely to respond
& least likely to grant permission
100%
Scholarly associations
75%
University presses
50%
Commercial publishers
25%
Museums & galleries
0%
Sample
content
Not
Response Success
located
rate
rate
Conclusions
• It is possible to secure copyright permission
to digitize & provide open access to books
• Future studies
– Use dedicated labor
– Track transaction costs
– Experiment to increase response & success rates
– Improve data management
Posner Project
2002 – 2003
• 1106 fine & rare volumes in the Posner Collection
• 26% (284) were copyright protected
(104 publishers)
• Associated archival documents
– Correspondence
– Newspaper clippings
– Book catalogs
Posner Project
2002 – 2003
• Initially intermittent labor – one person
– Sent 60 letters, but did no follow up
• Dedicated labor May through Oct 2003
• Process
– Initial request letter – sent 174
– Follow up phone calls or email – 159
• Tracked transaction costs
Overall Results
100%
Still negotiating
Permission granted
1%
100%
3%
43%
75%
75%
50%
50%
61%
Permission denied
No response
Not located
5%
25%
• Mistakenly requested permission
for 74 out of copyright books
• All granted permission
• Data NOT included in graph
18%
25%
20%
5%
31%
13%
0%
0%
Publishers
Titles
69% publishers contacted
(87% of the titles)
100%
100%
65%
Permission granted
Permission denied
75%
75%
50%
50%
25%
25%
71%
No response
28%
23%
7%
0%
6%
0%
Publishers
Titles
64% publishers responded
(82% of the titles)
100%
100%
70%
Permission granted
75%
75%
50%
50%
25%
25%
75%
Restrictions applied to 29% of titles
Permission denied
30%
0%
25%
0%
Publishers
Titles
Comparative Results
93%
100%
75%
Feasibility (titles)
75%
Posner (titles)
50%
Posner (publishers)
66%
45%
25%
0%
Not
located
Response rate based on contacts
Success rate based on responses
Response
rate
Success
rate
Comparative Analysis of Restrictions
60%
50%
Posner study
40%
Feasibility study
30%
20%
10%
0%
Provide
copy
Carnegie
Mellon only
Display
citation
Individual
use
English
only
No 3rd
party
Not for sale Permission License to
to scan
provide
expires
access
expires
Fee
required
Attribute Increased Success
• Revised, more informative letter
• Prompt follow up calls or email
• The age & nature of the Posner Collection
• Copyright holders could see
the quality of the work on the web
Analysis by Print Status
• Not yet done
• Issue learned from Million Book Project
– Librarians consider book to be out of print
if exact work is no longer available in print
– Publishers consider book to be out of print
if no newer edition is available in print
Analysis by Publisher Location
• 29% content was foreign publications
– More difficult to locate, & slightly less likely to respond
or to grant permission
100%
75%
Domestic
Foreign
50%
25%
0%
Collection
content
Not
located
Response
rate
Success
rate
Analysis by Publisher Type
• Special publishers are most likely, commercial
publishers least likely to grant permission
• Authors & estates or units unknown own most
of the content – difficult or impossible to locate
100%
Scholarly assoc.
University press
Commercial
Authors & estates
Special publishers
Unknown
75%
50%
25%
0%
Sample
content
No
address
Response
rate
Success
rate
Transaction Costs
$78 per book/volume
$ 10,808 FTE labor
$
379 Phone calls
$
100 Paper & postage
$ 11,287 TOTAL
May 2003 – October 2003
Does not include legal fees,
administrator time, or cost of Internet
connectivity or database creation.
174 letters
159 follow up calls or email
Consultations with Legal Counsel
• WIPO signatories do not have the same copyright
laws (interpretations & practices)
– Eventually abandoned seeking permission for foreign
works because legal counsel wanted to examine every title
• Associated archival documents
– Fair use to digitize correspondence
from book dealers
– Perhaps fair use to digitize clippings
– Book catalogs are copyright protected
Problems Seeking Permission
• Determining copyright status
• Identifying & locating copyright holders
• Publishers
– Slow to respond
– Don’t know what they published
– Don’t know what rights they have
– Afraid of open access & lost revenue
Million Book Project
2002 – 2004
• Include 100,000+ U.S. copyrighted books
• Initial focus was Books for College Libraries
– 12,300 (25%) are definitely still in copyright
– 35,500 (71%) require checking copyright renewal records
• Initially intermittent labor
• Dedicated labor started November 2003
• Changed process to reduce transaction costs
– Books for College Libraries as approval plan for publishers
Request Letter & Strategy
• Educate
– Users want to find information online, but use print
– Open access increases use, even use of older works
– Open access does not decrease sales
– Open access can increase sales
– Currently no revenue
from out of print books
Request Letter & Strategy
• Ask for non-exclusive permission to digitize
& provide open access to
– All out of print, in copyright titles
– All titles published prior to ____________
– All titles published # or more years ago
– List of titles they provide
• No restrictions allowed
Request Letter & Strategy
• Assure
– Follow preservation standards & copyright law
– Restrict print & save to only one page at a time
• Give images, metadata, & OCR
– Generate revenue from fee-based services
– Were seeking print on demand vendor,
but Indian government objects
to commercial partners
• Then prompt follow up
Preliminary Results
100%
16%
75%
Permission granted
16%
4%
Permission denied
50%
Not at this time
61%
Still negotiating
No response
25%
(3 strikes & you’re out)
0%
3%
Completed Negotiations
100%
45%
Permission granted
75%
Permission denied
Not at this time
50%
19% university presses
6% scholarly associations
44%
25%
11%
0%
Comparative Results
97%
100%
Feasibility (titles)
75%
Posner (titles)
50%
Posner (publishers)
MBP (publishers)
Completed negotiations
Response rate based on contacts
Success rate based on responses
66%
45%
45%
25%
0%
Not
located
Response
rate
Success
rate
Analysis of Permissions Granted
100%
6%
Titles # or more years ago
75%
Titles prior to _______
Specified titles
7%
70%
50%
All out of print titles
25%
17%
0%
Analysis by Publisher Type
• Special publishers, authors & estates are most
likely to grant permission
• Commercial publishers & university presses
are least likely to grant permission
100%
Scholarly assoc.
University press
Commercial
Authors & estates
Special publishers
75%
50%
25%
0%
Contacted
Response
rate
Completion
rate
Success
rate
Preliminary Transaction Costs

$0.62 per book
Roughly 47,500 titles
$ 28,582 Labor
$
483 Phone calls
$
216 Paper & postage
$ 29,281 TOTAL
Nov 2003 – Sept 2004
Does not include legal fees,
administrator time, or cost of Internet
connectivity or database creation.
640 letters (25% in email)
582 follow up calls or email
Costs including Administrator Time

$0.88 per book
$ 31,027 Labor
$
533 Phone calls
$
220 Paper & postage
$ 41,780 TOTAL
Roughly 47,500 titles
Administrator
– 889 email messages (5 min)
– Guess 10 letters
– Guess $50 phone calls
– Guess 300 hours data analysis,
presentations & publications
Nov 2003 – Sept 2004
Does not include legal fees, cost of
Internet connectivity, database creation,
or administrator time on grant proposals.
University Presses
• Began with university presses
– Preliminary analysis of feasibility study data indicated
they were more likely to grant permission
• Snags
– Copyright often reverts to author
when books go out of print
– More recent books will never go out of print
because of print on demand contracts
– Third party copyright ownership issues
– 13 presses will consider titles WE specify
Experiments
• Compiling lists of titles – Books for College Libraries
– 6 minutes per title to verify citation & copyright status
• Using Lesk’s copyright renewal records database
– Not cost effective to verify print status
– List of 300 titles takes 30 hours to prepare
• Locating authors or estates – Authors Registry
– Charged $2.50 fee per author/estate found
– Same day response (25 requests)
– Found 52%
– 92% accuracy rate
Kahle v. Ashcroft – Supreme Court
• Challenge U.S. copyright system
– No records of copyright ownership
– Denies public access to orphaned works
without providing any benefits
• Submit examples of how barriers
to using out of print books
burden your work
http://notabug.com/kahle/
Public Domain Enhancement Act
• Copyright holders
– Pay small fee ($1.00) 50 years after publication
& every 10 years thereafter to retain copyright
– Provide contact information
• U.S. Copyright Office
– Handles financial transactions
– Creates public database
Thank you!
Denise Troll Covey
Principal Librarian for Special Projects
Carnegie Mellon
troll@andrew.cmu.edu
412 268 8599