Michael Heller, a property lawyer at Columbia University, has coined the term the ‘tragedy of the anti-commons’. This is a twist on the more familiar idea of ‘the tragedy of the commons’ — which is thought to be the cause of such ecological disasters as the implosion of fisheries, perhaps even the nearing apocalypse of global heating. Heller’s insight is that too much private ownership can be as much of a problem as too little: “When too many owners control a single resource, cooperation breaks down, wealth disappears and everybody loses.” He gives plenty of examples in his book The Gridlock Economy — the book’s argument is forcibly stated in its subtitle: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.
There is a good chance that the Google Books Settlement is going to show us all how this tragedy of the anti-commons works out in the world of books. The Google project, which is backed by the American publishers and American Authors’s representatives should be (in my view will be) a wonderful resource for American universities, schools, public libraries and through them for American consumers. By 2011, if the Settlement is approved, at least 5 million out of print but not yet out of copyright [OOPnotYOOC] titles will be available to readers in the US market. This resource will have little opportunity to work so well for authors, readers and consumers in the rest of the world. The books will by and large not be available in the rest of the world (perhaps in American embassies?).
Google is already serving a very different and vastly narrower view of Google Book Search to the rest of the world (even to Canada and Mexico). Books which are public domain and wholly visible and readable in the US are not visible and readable elsewhere. And this copyright caution about territorial rights is unlikely to change, because the Settlement, when it is approved, is only going to be approved and agreed for the US market. Google has been persuaded (or has volunteered?) to accept the territorial restrictions and complications inherent in the market of copyright books. In my view, Google will not risk starting court actions in other jurisdictions, for the very simple reason that they might be lost, or worse still settled on a different basis from the US dispute. Google will be bound to leave the ex-US position of its wonderful aggregate of unloved (mostly ‘orphan’) copyrights in a national limbo. The orphans will remain unloved outside the 50 states.
The complexity of the rights situations of these millions of titles is effectively unmanageable and un-negotiable, which is pretty much what Michael Heller means by a tragedy of the anti-commons. By developing and growing an intricate and incredibly complex system of rights for different legal regimes and market territories the publishing industry has produced a system where a negotiated and innovative new service is probably impossible. It would take something like a new Berne convention on copyright to make this a level plane for all jurisdictions.
One might say that this hopeless and impenetrable thicket of rights which are largely historical and dormant is a problem for the rest of the world and for scholars outside the US. It is not a problem for the US, or for Google. Well maybe….. but it is also possible that this lack of international and global relevance will undermine the authority and the prestige of a US-centric resource. I wonder whether US scholars will accept a situation in which citations and references cannot be made and verified in a global context?
There is another dimension in which the impenetrable complexity of the rights position OOPnotYOOC titles: illustrations and photographs in these titles are in effect excluded from the scope of active exploitation by Google. Interestingly enough, Children’s Book Illustrations are to be treated differently. They are defined as ‘inserts’ and therefore fall within the scope of the settlement and will presumably be in the searchable and readable services that Google produces. But, in the place of ordinary illustrations and photographs in books which are not ‘Children’s Books’ we should expect gaps or blanks, such as one already finds in the Google Book Search service. Eric Rumsey thinks that I may be on my own in reading the Google Settlement this way, but some apparently well-informed, anonymous, commenter makes a similar point in a comment on the Martyn Daniels blog. Why should illustrations in Children’s Books be treated differently from those in other books? I suspect that the publishers and the Authors Guild felt that they could negotiate with certainty on these rights (as also on quotation rights, rights in poetry etc) but they knew that they could not negotatiate for the owners of artistic rights.
Will it matter that Google Book Search, when it is marketed as a commercial subscription service for libraries and universities cannot be accessed or read in the world at large? Will it matter that many of the photographs and illustrations in millions of the OOPnotYOOC titles will not be there? Yes, it will matter, and that it matters will be another instance of the tragedy of the anti-commons.