The Trouble with Orphans

In the old dispensation books (and magazines and newspapers) used to be published and then gradually disappear. A few copies of any particular print run would be kept in archival conditions in important libraries, but by and large they gradually mouldered away. In fact they biodegraded into mulch. Something similar happened to the 'copyrights': to the intellectual property that the publications crystalised. After a few decades, and with the exception of a very few masterpieces or works of genius, the intellectual property that they represented was of negligible value or interest, and they would sooner or later fall into the public domain, probably before the physical book biodegraded. At that point the 'IP' did not matter, or rather it mattered only to the public domain.

In the last 10 years there has been a growing tumult about 'orphan' copyrights. Or 'orphan works'. In the eyes of some of the key critics, eg James Grimmelmann, the real problem with the Google Book Search proposition and the Settlement that Google is reaching with Authors and Publishers is all about the orphans that are being swept up into the maw of Google's 7 million, and counting scanned digital books.

But the funny thing about 'orphan works' is that the very category is defined by the technology which makes it possible to replace or preserve printed books by digital books which could last forever. The books and photographs are no more 'orphan' than they ever were, it is just that they look like they should be imortal rather than biodegraded, so who can speak up for them on that? Suddenly old and mostly forgotten copyrights seem to have some possible value, because the digital books could last for ever, and who knows but some of them (a few) will surely have considerable hidden value? To many of the critics it does not seem right that this value should accrue or crystalise to Google (and to the Authors Guild and some Publishers), rather than to anybody else.

If you buy the idea that the 'orphan' status of a book (or some other piece of intellectual property) is more a function of the new technology than of the old which was around when the object was born or conceived, there is an interesting corollary. As technology improves the orphans become more valuable. The 'orphans' may indeed become a lot more valuable when computation advances again, as it will. Especially if the orphans can be used to construct something else, something that we dont yet understand. Who is to say what value they have? There is a lot in the Google Books Settlement about 'non-consumptive' research (which roughly means 'reading by computers and software'). Who knows how valuable that could become?

We may get a glimpse of this when Wolfram's intriguing Alpha project is unveiled. From Rudy Rucker's recent blog about what Alpha portends, it certainly sounds to me as though Wolfram and his team have been doing some pretty sensitive 'non-consumptive' reading of key reference books:

I asked him how he is handling the daunting task of finding out all the possible scientific models. “There’s only so many linear feet of reference books that exist in the world,” remarked Wolfram. “Nowadays when I go into a library I look at the reference shelves and try and estimate how many of them we’ve picked up. I think we’re close to ninety percent by now. Right now my office is mounded with books with bookmarks for things we still need to implement, and one by one the bookmarks and the books are going away.” www.hplusmagazine.com

When the database representation of what a book is about gets to be that powerful and expressive, non-consumptive reading is arguably more useful and valuable than the old fashioned human kind of reading. Orphan copyrights, in a clever enough computer environment, have much more value than their publishers or authors could have imagined....