Bókasafnið - 01.07.2017, Page 37

Bókasafnið 41. árg – 2017 37
The writer generally asked authors whether they had signed
a publishing contract and whether they still had a copy of it.
Not a single author was able to supply a publishing contract
and in most cases it appeared that there never was one (this
is, or at least was, typical for Iceland). Under current law in
Iceland (39. gr. Höfundalaga nr. 73/1972) publishing con-
tracts grant a publisher an exclusive right to publish a work
in the specified format unless otherwise agreed, and an au-
thor is forbidden to publish a work in that format or allow
others to do so until the print run of that work is sold out.
The writer thus considered that if a work was sold out, and
in the absence of information to the contrary, the author (or
their heirs) was the sole rightsholder and that the author’s
authorization alone was sufficient to open access to the
work. The writer consulted with an experienced local lawyer,
whose advice was that any claim for damages by the pub-
lisher of an out-of-print book which was now being made
available for free in digital format would be very weak.
HathiTrust’s policy appeared to be to open access to any
work simply based on an author’s assertion of rights, and
HathiTrust also had a takedown policy which could pre-
sumably be used by anyone who felt that the author was not
the sole rightsholder. Thus the writer judged that authors
generally had a green light to make their own decisions
about the fate of their own out-of-print works.
Nevertheless, an attempt was made to contact the publish-
ers of out-of-print works out of courtesy. For example,
some of the books involved were published (several decades
ago) as part of university publications series which still
existed. The writer contacted the current administrators of
these series to let them know of his activity. The responses
varied, but in general these exchanges are probably best
characterized as having been an annoyance and a waste of
time for all parties. The administrators (employees of a state
university) generally expressed insecurity or uncertainty
about making any formal statement of approval towards the
author’s interest in opening access. They often responded
bureaucratically and wanted to refer the issue to a board of
directors. The writer tried to explain that practically speak-
ing there was no point in hindering the digital distribu-
tion, or even spending time on mulling over the legalities,
of sold-out works that had been published long ago for a
limited audience. None of these administrators pursued the
issue further.
As the project went on and the writer gained confidence, he
began to tackle scholarly works that had been sold in regu-
lar book stores and he started to look at works published by
commercial, for-profit publishers. In such cases he took the
approach of contacting publishers beforehand and asking
them for their opinion. Responses from the nonprofit and
scholarly book publishers consulted (such as the University
of Iceland Press, Hið íslenska bókmenntafélag, and the
Árni Magnússon Institute) took some time to arrive but
were generally positive. As long as a book was sold out or if
revenue from it was no longer a concern, they had no prob-
lem with an author deciding to distribute a book digitally
for free.
Towards the end of the project the author contacted Ice-
land’s largest commercial publisher to inquire about its
views on the project, and also to ask how to determine
whether a book was sold out (there is no equivalent of
the American “Books in Print” in Iceland) and find other
information about a book’s rights status. A response came
back which sidestepped the question of contact channels
and expressed disapproval of the project. The respondent
said that he would discourage authors from participating
and would encourage them instead to allow their books to
be distributed electronically for a fee, either on the regular
e-book market or possibly through an Icelandic version of
the Norwegian “bokhylla” collective licensing project (see
below). The writer repeated his request for information on
how to request information on a book’s sold-out status but
received no reply. The project concluded before the writer
was able to work with any authors of books issued by this
publisher.
One grey area was the definition of “sold out.” The writer
was told of a local rule of thumb that a book could be con-
sidered sold out when only 50 copies remained. He never
found any formal, written source for this. Today, when
a single copy of an otherwise out-of-print book can be
produced digitally in response to a sales order, the defini-
tion of “sold out” is even less clear. This uncertainty is also
mentioned by Vuopala (2010, 18) and Cabrera et al. (2015,
ch. 4).
Ultimately, opening access to a given title very frequently
involves a small amount of calculated risk, as Stobo (2011:
18) also reports. The cost of erasing all doubt that an over-
looked rightsholder might surface and object to the release
of a given work quickly begins to outweigh the potential
damages from such an error.
In the writer’s opinion, rightsholder issues in this project
were more of an intellectual exercise than a practical issue.
None of the books released with the project’s assistance had
any substantial commercial future, and most never had. In
the pre-digital days, printing these mostly scholarly books
on paper was the only way to distribute them to readers.
They were books which were written to be read, not books
which were written to be sold.3 Thus the attempt to identify
and respect publication rights sometimes felt like a charade
with a flavor of the absurd, similar to what is reported by
Vuopala (2010, 21). Of course, if the project’s focus had
3. For a concise introduction to this distinction, see Van Houweling (2015). The distinction can perhaps be traced to Raymond’s
(1999) distinction between software written for use or for sale.