The UK Authors’ Licensing and Collecting Society, the Norwegian Nonfiction Writers and Translators Association, the Swedish Writers Union, the Writers’ Union of Canada, and four individual authors are among the new plaintiffs in an amended complaint filed recently in the Authors Guild v. HathiTrust case. Individual authors joining the lawsuit include University of Oslo professor Helge Rønning, Swedish novelist Erik Grundström, and American novelist J. R. Salamanca. The Authors League Fund, a 94-year-old organisation supported by Authors Guild members that provides charitable assistance to book authors and dramatists, is also now a plaintiff, as holder of rights to an ‘orphaned’ book by Gladys Malvern.
The defendant universities have pooled the unauthorised scans of an estimated 7 million copyright-protected books, the rights to which are held by authors worldwide, into an online repository called HathiTrust. In June, the University of Michigan, which oversees HathiTrust, announced plans to permit unlimited downloads by its students and faculty members of ‘orphaned’ books. Michigan devised a set of procedures - including a protocol for searching for an author and posting the names of ‘orphan work candidates’ at the HathiTrust website for 90 days – to determine whether it would deem a work an ‘orphan.’ Several other schools joined the project in August.
Within days of the suit’s filing on September 12, the Authors Guild, its members and others commenting on its blog had developed strong leads to dozens of authors and estates holding rights to the first 167 works listed as ‘orphan candidates’ at HathiTrust’s website. Four living authors were on HathiTrust’s list. So were significant literary estates, such as those of Pulitzer Prize winners James Gould Cozzens and Walter Lippmann and the philosopher Sidney Hook. Foreign authors were also on the list, including André Missenard, who died in Paris in August. At least three of the works are still in print.
Michigan announced on September 16 that it was suspending, but not ending, its ‘orphan works’ programme. Its online servers continue to host an estimated 7 million digitised, copyright-protected books. Millions of those books are believed to be in print, with e-book versions available for many of them.
The Authors’ Licensing and Collecting Society, based in London, has licensed secondary uses of its member-authors’ works for more than 30 years.
Although many US universities, including Harvard, Princeton, and Stanford, have participated in Google’s library digitisation programme, most allow Google to scan only books that are in the public domain. Only a few, principally defendants Michigan and California, have allowed Google to scan books protected by copyright. As state-run institutions, both schools are shielded by 11th Amendment sovereign immunity protections from paying damages for copyright infringement.
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