In testimony delivered Wednesday afternoon before the House subcommittee on the Courts, Intellectual Property and the Internet, Authors Guild counsel Jan Constantine recapped the Guild’s long running copyright dispute with Google over its scanning program and offered what she said is one possible solution—a collective licensing agreement for digital presentation rights to out-of-print books.

In a statement released to PW and delivered to the subcommittee, Constantine provided the subcommittee with a detailed history of its dispute with Google over making digital copies of books for Google Book Search, outlining all the ways in which its members rights have been ignored. “Ad hoc approaches to mass digitization of books and so-called orphan works are rife with problems and seriously endanger our literary culture,” Constantine said before detailing a history of what she called “copyshocks,” or a variety of efforts by Google, earlier tech companies and libraries to establish ‘the universal digital library.”

The “copyshocks” she describes are the Google book scanning program and the HathiTrust, a University of Michigan library program designed to make “orphaned works,” or out of print books whose copyright holders cannot be located, available in full-text e-book editions. Although Constantine offered detailed criticisms of both programs, she failed to mention that the courts have ruled against the Authors Guild in suits it has filed against both Google and the HathiTrust on fair use and digital copying. The Guild has appealed both rulings.

Constantine criticized Google for not getting permission to make digital copies of library holdings for Google Book Search, surprisingly comparing Google unfavorably to Amazon, which negotiated permissions for its “Inside the Book” database. She also slammed the HathiTrust repeatedly for both infringing and incompetence, noting how easy it was in practice to find the rights holders to many of the so-called “orphan works” listed by the library program. Indeed, Constantine declared that the “orphan works” problem is “vastly overstated,” noting that the Authors Registry, a Guild affiliate with “one and half employees” that collects foreign rights payments, is able to find more than 80% of the rights holders of out of print works.

Constantine suggested the solution to both copyright problems is “non-compulsive collective licensing of a limited set of out of print book rights” which would pave the way to “a real digital library, not the mere excerpts and snippets currently offered by Google Books.” In addition, a third-party organization to manage the negotiations over these rights would have to be established by Congress. This could be a problem. Speaking at the AAP annual meeting in late March, Rep. Jerry Nadler (D-NY), the ranking Democrat on the IP subcommittee, told the assembled publishers that while it would hold hearings on a variety of copyright topics, legislation on copyright was unlikely.

Constantine emphasized that collective licensing would be solely for display rights for out of print books, “to avoid disrupting commercial markets.” In fact she said “foreign licensing and collecting organizations have been efficiently licensing orphan works for decades. We should learn from their examples.”