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Volume 6, Issue 2, August 2009
Googling the Archives: Ideas from the Google BooksSettlement on Solving Orphan Works Issues in DigitalAccess Projects
Sally McCausland 
Many large scale digital archive access projects, whether undertaken by libraries,cultural institutions, commercial enterprises, research institutions or interest groups, struggle with orphan works and other copyright clearance issues. Under the default “opt-in” system prevailing under the Berne copyright treaty framework, eachcopyright owner must be located and give permission before their material can bedigitised and made available for online uses. This imposes significant transactioncosts and legal risks, and the public interest in access to cultural material iscompromised. Various legislative solutions have been proposed, particularly inrelation to orphan works, but no comprehensive solution has emerged. Legal developments around Google’s activities in pursuit of its “Library Project”now offer new ideas. The Google Books Settlement is the provisional settlement of copyright infringement action brought against Google by the American Authors Guild and the Association of American Publishers. The case concerned the legality of the Library Project through which Google has digitised millions of “archival”, or out of  print, books and made them searchable online. Google’s controversial defence tocopyright infringement is that its actions constitute fair use under US copyright law.The settlement is not yet judicially approved and fairness hearings are set for October 2009. However, if approved, it will be groundbreaking. It achieves, via class action
Senior Lawyer, Special Broadcasting Service (SBS) and board member, Audio-Visual CopyrightSociety Ltd (Screenrights). This paper was originally presented at the Unlocking IP Conference,“National and Global Dimensions of the Public Domain”, University of New South Wales, Sydney,Australia 17 April 2009. My thanks to Jan Constantine of the Authors Guild, Ishtar Vij of Google,Graham Greenleaf and the anonymous reviewers for their useful comments. Thanks also to FrancisJohns, Natalie Buck and Michael Easton for help with research. The opinions expressed in this paper are my personal views and not those of SBS or Screenrights.
 (2009) 6:2
rules, a rule switch from opt-in to opt-out – creating a unique safe harbour for Google to commercially exploit millions of books without first searching for ownersand seeking their individual permissions. In practical terms, it will vastly increasedigital access to in-copyright, out of print books.This paper considers whether legislative reform based roughly on this model could beapplied to other digital access projects seeking to unlock cultural archival material.
[This article was presented at the 'Unlocking IP' conference held in New South Wales on 16-17 April 2009.]
DOI: 10.2966/scrip.060209.377© Sally McCausland 2009. This work is licensed under aCreativeCommons Licence. Please click on the link to read the terms and conditions.
 (2009) 6:2
1. Introduction
1.1 The Legal Problem with Putting Twentieth Century Archives Online
 Perhaps the single most important feature of the digital revolution isthat for the first time since the Library of Alexandria, it is feasible toimagine constructing archives that hold all culture produced or distributed publicly…The scale of this potential archive is something we’ve never imagined before…but we are for the first time at a point where that dream is possible.
 Digital technologies now offer opportunities for searching and accessing archival
 cultural material on an immense scale. Governments, commercial enterprises andcultural institutions worldwide are testing the possibilities. But copyright has emergedas a major barrier, at least in relation to the creative output of the twentieth century. In part this is the unintended consequence of the Berne Convention
system of international copyright protection – conceived in the pre-digital era. The BerneConvention is the foundation of modern copyright law and most countries are nowsignatories. It is based on two relevant key principles. The first is automatic protection – meaning that a copyright owner need not register his or her work 
or comply withany other formality for it to be protected by copyright.
The second is absolutediscretionary permission – meaning that any third party user wishing to reproduce thework requires the owner to ‘opt-in’ and licence the use, unless a particular exceptionor statutory licence applies.
 While the Berne framework has greatly assisted the development of copyright basedcreative industries around the world, these twin principles create difficulties for digitalusers of archival works which are still in copyright. As owners of copyright interestsin the material are not required to be registered, they are not required to be easilylocated. As archival material is, by definition, not recently created, it is often the casethat the primary use or market for which the material was originally licensed was pre-digital, and no advance permission was given for digital use. So, the owner, or owners, must be found to check whether or not they will permit the new digital use.Here is the difficulty. The copyright owner may since have gone out of business,
L Lessig,
 Free Culture
(2004) available athttp://www.free-culture.cc/, at ch 9.
In this paper “archival” is used loosely to refer to works for which the primary use has expired or which are no longer in wide circulation in their original form. Examples would include books which areout of print, films no longer in distribution or computer games made for obsolete formats.
 Berne Convention for the Protection of Literary and Artistic Works (Paris, 1886 as revised) ( 
hereafter Berne
The relevant principles of 
have been backed by World Trade Organization dispute procedures since the introduction of Article 9(1) of the
 Agreement on Trade-Related Aspects of  International Property Rights
(Marrakesh, 15 Apr 1994)
(hereafter TRIPS).
For convenience, in this paper I use the term “work” as shorthand for all material protected bycopyright under international treaty law as reflected in Berne, TRIPS
and associated treaties concerningcopyright.
Berne, above note 3, article 5(2).
articles 9(1), 9(2).

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