“For all their differences, Google and the DPLA do share a major hurdle: Copyright law, which prevents the digitization of orphan works, numbering around 5 million and constituting about 50 to 70 percent of books published after 1923. Orphans are works whose rights holders are not known; they may be dead or unaware of their entitlement. Google’s settlement would have given the company license to appropriate orphan works for posterity—a move that would have opened up a trove of previously unavailable works, at the expense of granting Google unprecedented control through litigation. The DPLA faces a similar problem: As some members pointed out in a gathering last year, out-of-print and orphan works—content in the “yellow zone” of copyright—outnumber both public domain and in-copyright works, “making legal reforms necessary for the success of a DPLA,” according to meeting notes. Jason Schultz, an assistant professor at UC Berkeley School of Law and a DPLA member focusing on legal issues, says that the coalition wants to strike the right balance between the rights of copyright owners to be properly compensated and the rights of public access. The DPLA will not violate copyright, and it will begin with a foundation of public-domain works. The organization is trying to figure out the best case for fair use of out-of-print or unpublished works to argue that public access to this literature benefits society and serves a “higher” purpose.
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