Mass digitization is the way of the future. Universities, businesses, and private collectors are taking entire libraries, scanning them onto computers, and making searchable documents. This makes out-of-print works accessible to brand-new audiences, gives researchers new tools for studying language usage over time, and allows passages from books to be found in search engine results.
Google and the Authors Guild just finished a decade-long court battle in the Second Circuit over whether Google’s “Google Books” project—an undertaking which has mass digitized thirty million books to date without getting prior permission from individual authors—is a legally permissible endeavor. Google won. But that’s not the end of this story. The Second Circuit determined that Google Books was permissible under the fair use doctrine, but this decision did not and cannot adequately serve as the final authority on mass digitization projects. This decision disrespects the needs of authors, which in turn disrespects the needs of the public. Congressional legislation must be enacted to regulate mass digitization. It is the only way we can ensure that authors, mass digitizers, and the public alike have their interests represented.
This Note argues that Congress should pass legislation utilizing a framework already formulated by the Copyright Office. Legislation would create Copyright Management Organizations, which would negotiate directly with mass digitizers on behalf of individual copyright holders for licensing fees to use their works. Congressional action would warm the frosty climate that stifles digitization efforts. This Note proves this assertion by examining the success of similar schemes both domestically and internationally, in both the public and private sectors.
Timothy A. Rucki, COPYRIGHT LAW—UNFAIR USE: UNIONIZING CONTENT CREATORS THROUGH LEGISLATION TO SOLVE THE PROBLEM OF MASS DIGITIZATION, 40 W. New Eng. L. Rev. 85 (2018), https://digitalcommons.law.wne.edu/lawreview/vol40/iss1/5