Recent, insightful comments by consultant Joseph Esposito (scroll down) respecting the text mining of digitized works prompted me to write the following. The statements below are mine alone.
Secret text-mining of digitized works, and the for-profit use of the results of such text-mining, furnish, I think, two key reasons that U.S. Register of Copyright Marybeth Peters’s pronouncements about fair use respecting unauthorized full text digitization are so important to copyright owners and licensees. Once the door is opened to designating as fair use the unauthorized full-text digitization of copyrighted works, the digitizers can reap a windfall: they can analyze those digitized texts, and profit from the results of that analysis with impunity. The reason: most text mining processes occur offline and cannot be detected in the ordinary course. To my knowlege, copyright owners and licensees have no effective means of monitoring digitizers to protect against unauthorized automated analysis of scanned texts.
This outcome seems inconsistent with the property rights policies underlying the 1976 Copyright Act, policies negotiated over the course of more than six decades. See, e.g., this discussion in the House Report. I think this is one reason that some people are calling for congressional action respecting these issues. If judges or the Copyright Office decide these matters, there is a substantial risk that unelected officials will cause the law will take a course inconsistent with Congress’s intent as expressed in the 1976 Act.
It is possible that the views of a majority of U.S. citizens respecting property rights in information have changed since enactment of the 1976 Act. (I do not know whether this is true, or, if it be true, the extent of the change.) If such a change has occurred, and if a majority of U.S. citizens want to change U.S. copyright law to reflect their new view of property rights in information (whatever it may be), then I think it is Congress’s prerogative to express that new view in legislation, and I think it’s also Congress’s responsibility to protect the very substantial reliance interests of copyright owners and their licensees who have acted based on the 1976 Act.
But given that it took more than half a century to work out the compromises that yielded the 1976 Act, I think it’s unlikely that Congress will act timely on these issues, and so the decision probably will be left to the courts and the Copyright Office. (I hope I’m proven wrong.) And the market accordingly will discount the value of copyrights protected by U.S. law. Indeed, I suspect such discounting began at least as early as the moment that Register Peters’s views on this fair use matter became public. Market participants, at least, understand the stakes.
Tags: Copyright Act of 1976, Copyright infringement, Copyright law, Digitization of copyrighted works, Digitization of texts, Fair use, Google Books, Google Books Settlement, Text analysis, Text mining, Unauthorized digitization of copyrighted works, United States copyright law, Value of copyrighted works, Value of copyrights