Extended Collective Licensing to Enable Mass Digitization: A Critique of the U.S. Copyright Office Proposal

Networks, the Internet, and Cloud Computing, Internet, Media and Content, Intellectual Property and Copyright and Trademark

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Pamela Samuelson


European Intellectual Property Review, forthcoming; UC Berkeley Public Law Research Paper No. 2683522, January, 2016


The Copyright Office has proposed that an extended collective license (ECL) be created to allow mass digitization of some copyrighted works. For several reasons, the Copyright Office plan is not workable.

Policy Relevance

The public would benefit from the creation of digital libraries. However, the solution should fairly represent authors, and keep costs low.

Main Points

  • Under current law, it is unclear whether authors or publishers own the right to display a book online if the publication contract does not address the issue.
  • When a lawsuit arising from Google’s attempt to create a library of digitized books was settled, authors of books published before 1987, when e-books were unforeseen, were given a larger share of revenue than authors of later works; this settlement became the basis for the Copyright Office’s proposal for extended collective licensing.
  • Under the collective licensing proposal, the creators of a digital library could not obtain all the rights they need in one place; multiple negotiations with authors, publishers, photographers, and others would be required.
  • The proposal fails to address how collective rights ownership groups would form; existing organizations, such as the Author’s Guild, do not have nearly enough members to claim to fairly represent all authors.
  • The proposal fails to consider the desirability of digitization and public access to unpublished works, such as photographs in museums.
  • The proposal did not address whether works still being sold (“in-commerce” works) should be covered by the collective licenses, and whether and how authors could opt out.
  • The U.S. Congress could adopt a rule that would allow nonprofit libraries to digitize works in their collection and make them available on their premises for research.
  • Two significant questions arise when considering mass digitization of books:
    • How can the cost of creating digital libraries be kept low, so that multiple digital libraries compete with one another?
    • If only one digital library is created, how can we ensure that it is run in the public interest?

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