TAA Executive Director Richard T. Hull

The New York Times Magazine for May 14, 2006, carries a long cover article called "a manifesto by Kevin Kelly" titled "What will happen to books?" The full article should be required reading for every academic author.

Kelly chronicles the work being done to "bring us a planetary source of all written material," providing "all the works of humankind to all the people of the world." Scanning technology" will enable us to grab and read any book ever written . . ., any article ever written in any newspaper, magazine or journal . . ., every painting, photograph, film and piece of music produced by all artists, present and past . . ., all radio and television broadcasts . . .,[and] a copy of the billions of dead Web pages no longer online and the tens of millions of blog posts now gone . . . --in short, the entire works of humankind, from the beginning of recorded history, in all languages, available to all people, all of the time."

"Corporations and libraries around the world are now scanning about a million books per year." And much of this work is being outsourced to India and China, where scanning costs for a book are about 1/3rd of those in the U.S.

But scanning is only the first step in the revolution. Books will be provided links to other books by avid readers. Tags, which are public annotations hung on a file, page, picture or song, will enable others to search for that file. This amounts to a reader-generated alternative to the Dewey Decimal System.

Web surfing, which we all do when we click on some paragraph or page, creates a strengthened relationship between the end points of every link and the connections suggested by each tag. The effect is a kind of social, democratic intelligence.

When books are "deeply linked, you'll be able to click on the title in any bibliography or any footnote and find the actual book referred to in the footnote.

"So what happens when all the books in the world become a single liquid fabric of interconnected words and ideas? Four things: First, works on the margins of popularity will find a small audience larger than the near-zero audience they usually have now. . . . (D)ital interlinking will lift the readership of almost any title, no matter how esoteric.

"Second, the universal library will deepen our grasp of history, as every original document in the course of civilization is scanned and cross-linked.

"Third, the universal library of all books will cultivate a new sense of authority. If you can truly incorporate all texts -- past and present, multilingual -- on a particular subject, then you can have a clearer sense of what we as a . . . species do know and don't know.

"Finally, the full, complete universal library of all works becomes more than just a better Ask Jeeves. Search on the Web becomes a new infrastructure for entirely new functions and services."

Kelly traces the evolution of intellectual property rights to control copy, noting that the period of protected ownership has increased from 14 years (in 1976) to 70 years today. What gives difficulty for the emergence of the digital library is not the 15 percent of the world's 32 million cataloged books that are in the public domain (most of the current scanning effort by American libraries is directed toward digitizing these works), nor the 10 percent of all books actively in print. It is the 75 percent that fall in between.

There is no catalog of copyrighted works. Publishers don't have exhaustive lists of the copyrights they own. The Library of Congress does not have such a catalog. "The older, the more obscure the work, the less likely a publisher will be able to tell you (that is, if the publisher still exists) whether the copyright has reverted to the author, whether the author is alive or dead, whether the copyright has been sold to another company, whether the publisher still owns the copyright or whether it plans to resurrect or scan it."

"The legal limbo surrounding their status as copies prevents them from being digitized . . . . And if they are not scanned, they in effect will disappear."

The year 2019 is now the point at which the 70-year span of copyright beyond the life of the creator, enacted by Congress in 1998, will begin to yield this 75 percent to the public domain.

Enter Google. "No one was able to unravel the Gordian knot of copydom, until 2004, when Google came up with a clever solution. In addition to scanning the 15 percent out-of-copyright public-domain books with their library partners and the 10 percent in-print books with their publishing partners, Google executives declared that they would also scan the 75 percent out-of-print that no one else would touch."

"For out-of-copyright books, Google would show the whole book, page by page. For the in-print books, Google would work with publishers and let them decide what parts of their books would be shown and under what conditions. For the dark orphans, Google would show only limited snippets. And any copy-right holder (author or corporation) who could establish ownership of a supposed orphan could ask Google to remove the snippets for any reason."

Kelly points out two arguments against Google's strategy for the "dark orphans." The first is that publishers of such works have accused Google of blatant copyright infringement. Google is potentially making ad revenue from the snippets that it makes searchable, and is doing so without either having a contractual arrangement for sharing the revenue with copyright holders or even obtaining permission before scanning the work. Ironically, publishers have now started caring "about these orphans now because Google has shifted the economic equation: because of Book Search," out-of-print books may have some renewed income potential, "and the publishers don't want this potential revenue stream to slip away from them:

Google maintains "that it is nearly impossible to track down copyright holders of orphan works, and so, it says, it must scan those books first and only afterward honor any legitimate requests to remove the scan" that present themselves. "It is up to you as an author to notify Google to scan or search your copyrighted material." And the problem is ultimately precedent: if digitizing works that are out of print becomes profitable, you as copyright holder or author would have to be omniscient about who was doing so and "find and notify each and every geek who scanned your work, if for some reason you did not want it indexed". If you missed one, you might end up being indexed anyway. And once that genie is out of the bottle, it will be hard to cram it back in.

Kelly concludes with the observation that authors and other creators of intellectual property don't yet have alternatives to the copyright based forms of compensation for their labors. And it is clear to TAA readers that copyright-based compensation has been greatly weakened as the doctrine of fair use and the reselling of works without royalty payments has undermined the publishing industry's financial model. As Kelly sums it up, "Search is a wholly new concept, not foreseen in version 1.0 of our intellectual-property law." He proposes "a new covenant: Copyrights must be counterbalanced by copyduties. In exchange for public protection of a work's copies (what we call copy-right), a creator has an obligation to allow that work to be searched. No search, no copyright."

There is much here to ponder.