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January 02, 2006


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David Carson

Section 7 of the 1909 Copyright Act (codified in 1947 at 17 USC §8) provided that there shall be no copyright "in any publication of the United States Government." Therefore, it's hard to imagine how "Trust Laws and Competition" would ever have enjoyed copyright protection if it was a publication of a US government agency.


The problem may be at Google - maybe they should have (by their own terms) allowed full access, not realizing that this should be in the public domain?


My experience with Google Books is similar. It is as if Google Books has set up the system in a manner most friendly to publishers and retailers, and especially Amazon. When we search in Amazon we are not surprised that Amazon sometimes fails to direct us to less expensive copies of what we seek. (Sometimes it does so by listing paperbacks and used books directly beneath first entries, but sometimes not, and certainly not when Amazon is not offering the alternative for sale.) The "as if" may be intentional. perhaps Google's initial design aims to put forth the best case possible in litigation. As presently constituted, Google Books may well provide a windfall to Amazon, because my searches may cause me to buy more books that I previously would have. Vendors and publishers might still sue to try to get a bigger piece of the new pie, but even if they lose they may be thrilled with the development of Google Books. But the more efficient it becomes, the more existing copyright holders will lose out.

Tim Wu

Interesting post. I spoke with people at Google once about goverment works. They, as I recall, pointed out that Goverment works, while obstensibly in the public domain, often have claimed copyrights once republished by private parties, who claim copyright in formatting decisions, etc.

However weak those claims may be, given any uncertainty, any potential claim of copyright and Google usually treats the book as a copyrighted work. And since they need to do so in algorithmic fashion leading to lots of false positives (for protection).

I agree with your suggestion Randy. But how much work would it be for the copyright office to rule on what was definitely public domain? Seems like more work that google book search itself, no?

John Stewart

I believe that when the CORDS program was first proposed at the Copyright Office, it was conceived as a system that would allow not only electronic filing and submission of deposit copies but also, ultimately, the digital licensing of the Library's collection. (David can correct me if I'm wrong, but it appears now to have been reconceived, as a result of technological and budgetary constraints, as principally a business process reengineering project that will save administrative costs when ultimately implemented.) But that system, or one like it, could offer a method for identifying and permanently tagging public domain material.
CORDS and the DOI Foundation's system, which is used by the publishing industry, are based on the Handle System, which was developed by one of my clients. It is a system of unique persistent identifiers of digital objects that permits the association of metadata with the object, which can include information about public domiain status, history, and license requirements, if any.
The Copyright Office's budget will presumably not permit it to consider digitizing and tagging the Library's public domain collection. Some further evolved set of technological developments and economic incentives might well lead someone like Google to consider doing so. But Google's current operation appears to depend too heavily on the cooperation of publishers who see it as in their interest to provide sales-boosting access to portions of their current copyrighted works. As a result, Google doesn't seem likely to decide to provide free online access to the arguably public domain portions of the new editions those same publishers are still selling. And isn't it worth buying a new edition of Adam Smith's works from Amazon, just to have all those "f's" translated into "s's?"

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