|“||refer to projects in which the scale of digital copying is so extensive as to make the individual clearance of rights a practical impossibility.||”|
"The term 'mass digitization' does not lend itself to a precise definition. As an initial matter, there is no generally agreed-upon standard for determining whether a project is sufficiently large to be considered 'mass' digitization. In its 2011 Legal Issues in Mass Digitization publication, the Office observed that, in the context of books, the term had come to mean 'large-scale scanning,' and cited the then-15 million-volume Google Books project as a 'consensus' example of a project that would qualify. At the same time, the Office noted the possibility that 'a project capturing far fewer books might also be considered mass digitization."
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Moreover, the concept of mass digitization, in general, cannot easily be defined by type of work, purpose, or use. While the term is commonly associated with library projects — for example, creating digital copies of an entire collection to facilitate preservation and access — in many cases 'mass digitization involve activities that exceed the purpose of building a digital library."
Policy considerations Edit
"[M]ass digitization presents a variety of complex policy considerations, including both opportunities and risks. Some mass digitization projects offer considerable public benefits. In the Google Books litigation, for example, the district court identified several valuable purposes served by that project, including facilitating research, both through traditional methods and newly developed 'data mining' techniques, expanding across to books, particularly for traditionally underserved populations such as the print-disabled; preserving '[o]lder books . . . that are falling apart buried in library stacks'; and generating new audiences and sources of income for authors and publishers. As the United States recognized in that case, "[b]reathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost . . . and enhancing the accessibility of such works for the disabled and others are all worthy objectives."
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Realizing such benefits, however, may require qualification of certain exclusive rights under copyright law. Indeed, because of the practical impossibility of securing clearances on a work-by-work basis, current mass digitization projects in the United States either are limited to public domain works or rely on the fair use doctrine to justify copying and using works or parts of works without the rightsholders' advanced authorization. While certainly some of these uses may be fair, many have argued that such a system "seems to turn on it head; while copyright is a system of ex ante permissions, mass digitization comes with a compelling demand to revert copyright into an opt-out regime' in which a copyright owner must take affirmative steps to exclude his or her work. The district court in the Google Books case emphasized that concern in rejecting the proposed class action settlement, finding it 'incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."
Others have noted more practical concerns. Some stakeholders contend that, absent adequate security protections, mass digitization could precipitate the introduction into the marketplace of a flood of unauthorized digital copies of copyrighted works. "[W]ith no limits on who could undertake mass digitization," they argue, "copyrighted works would inevitably be copied by entities that are not trustworthy, who, for example, might take no steps to prevent further downstream copying and distribution."
In analyzing these competing considerations, the overarching question is whether the copyright system can strike an appropriate balance between facilitating those aspects of mass digitization that serve the public interest and safeguarding the rights of copyright owners.
- ↑ Orphan Works and Mass Digitization: A Report of the Register of Copyrights, at 73.
- ↑ Id. at 72-73.