The Authors Guild, Inc. et al v. Hathitrust et al

Filing 87

DECLARATION of Kelly Duffin in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
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Index No. 11 Civ. 6351 (HB)

DECLARATION OF KELLY DUFFIN
I, Kelly Duffin, hereby declare as follows:
1.

I am the Executive Director of The Writers’ Union of Canada (“TWUC”), one of

the plaintiffs in the above-captioned action.
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
The Writers’ Union of Canada
3.

TWUC has approximately 2,000 members who earn their living from writing

books. Since its inception in 1973, TWUC has been an advocate for effective copyright law,
protection of freedom of expression, fair publishing contracts, and other issues that affect
authors. TWUC’s objects include uniting authors for the advancement of their common interests
and fostering writing in Canada. Certified by the Canadian Artists and Producers Professional
Relations Tribunal, TWUC is the national voice of professional book writers in Canada in the
English language.

The Works At Issue
4.

Upon information and belief, members of TWUC own the copyrights in hundreds

or thousands of works that were digitized and are being used by Defendants without
authorization (collectively, the “Member Works”).
5.

One such member is Greg Hollingshead, who is a former Chair of TWUC and the

author of the Governor General’s Award-winning book The Roaring Girl (1995/Toronto:
Somerville House). Upon information and belief, Roaring Girl was digitized by Defendants and
incorporated into the HathiTrust Digital Library. See http://catalog.hathitrust.org/Record/
007138321. As the author and copyright owner of The Roaring Girl (see U.S. Copyright Reg.
No. TX0004415789), it is my understanding that Mr. Hollingshead could bring a lawsuit in his
own right against Defendants for digitizing and using his work without authorization.
6.

In addition to filing this lawsuit to protect the rights of its members, TWUC itself

owns the copyrights in and to a number of works that were scanned and incorporated into
HathiTrust without TWUC’s knowledge or consent. Attached as Exhibit A is a schedule of
works whose copyrights are owned by TWUC and have been infringed by Defendants ( the
“TWUC Works”). Attached as Exhibit B is a copy of the Will showing the bequest of her
copyrights from deceased TWUC member Edith Fowke to TWUC.
Harm Resulting From Defendants’ Use Of The Works
7.

The TWUC agreed to join this lawsuit as an associational plaintiff after learning

that print copies of the TWUC Works, Member Works and millions of other copyright books
were digitized and being used as part of the Google Library Project, and that Defendants planned
to begin making digital copies of purported “orphan works” available for free.

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8.

I have reviewed the declarations of several individual authors who are plaintiffs in

this litigation, including the declarations of T.J. Stiles, Pat Cummings and Roxana Robinson. I
believe that the works written by those authors provide a fair sampling of the types of works
authored by members of TWUC.
9.

I agree with and incorporate by reference the description in those declarations of

the various harms and potential harms that result from Defendants’ unauthorized digitization and
use of copyrighted works. Those descriptions need not be repeated here in full, but can be
summarized as follows.
10.

First, each digital copy of a TWUC or Member Work that is created by

Defendants without purchase or license represents a lost sale to the associated rightsholder.
Defendants could have purchased a copy but instead had it scanned without compensating the
copyright owner.
11.

Second, Defendants’ storage of the TWUC and Member Works in an online

digital repository exposes that property to security risks for which the rightsholders receive no
commensurate remuneration. Unauthorized access to copyright books leading to widespread
piracy would gravely impact the market for those works.
12.

Third, Defendants’ various uses of the TWUC and Member Works undermine

various licensing opportunities for rightsholders. For example, authors routinely grant or
authorize their publishers to grant online distributors like Amazon a license to scan and make
portions their books viewable online as part of a commercial arrangement targeted at promoting
book sales. Defendants also scan and make books searchable but without a license and without
being part of an effort to sell the books and provide revenue to the author. Defendants also

3

permit the books to be used for non-consumptive research, an emerging field that represents
another potential licensing stream for authors.
13.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to receive royalties. If permitted to proceed, the Orphan Works Project
is likely to negatively impact revenues for authors generated through a system established in
Canada to address orphan works. Section 77 of the Canadian Copyright Act permits the
Copyright Board of Canada (the “Board”) to issue licenses to users whose reasonable efforts to
locate a copyright holder have been unsuccessful. The Board sets a licensing fee for each
permitted use, which compensation is generally directed to a designated collective society
authorized by Canada’s Copyright Act to license a repertoire of authors’ works. In the case of a
print publication in languages other than French, the user pays the fee or royalties to the
collective society known as Access Copyright, which holds the payment in trust for the
unlocatable author or may use the payment for the benefit of the rightsholders whose works it
represents, provided that the author may claim the payment from Access Copyright within five
years of the expiry of the license. Attached as Exhibit C is an example of a license issued by the
Board to the University of Athabasca to digitally reproduce and distribute certain newspapers in
exchange for a $5,000 licensing fee. Defendants’ Orphan Works Project allows people to make
uses of orphan works but without any system to compensate rightsholders.
14.

Fifth, making books available through the Orphan Works Project will directly

undermine efforts to revive out-of- print books and will impact future sales of such books.
15.

In short, Defendants activities have harmed or have the potential to cause

enormous harm to the rights of authors.

4

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Dated: Toronto, Ontario
June 28, 2012

KELLY DUFFIN

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EXHIBIT A

EXHIBIT A

AUTHOR(S)
Edith Fowke and Carole
Carpenter

TITLE
A Bibliography of
Canadian Folklore

FIRST PUBLICATION
1976/Ontario: York
University.

SUBSEQUENT
PUB(S).
1981/Toronto:
University of Toronto
Press

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

1986/Penguin
Edith Fowke and Jay
Rahn

A Family Heritage

1994/Calgary: University
of Calgary Press

Edith Fowke

Canada’s Story in Song

1960/Toronto: W. J. Gage

Edith Fowke

Canadian Folklore

1988/Toronto: Oxford
University Press

Edith Fowke

Folk songs of Canada

1954/Waterloo: Waterloo
Music Co.

c1965/Toronto: W. J.
Gage

1955/Waterloo:
Waterloo Music Co.
1958/Waterloo:
Waterloo Music Co.
1967/Waterloo:
Waterloo Music Co.
1970/Waterloo:
Waterloo Music Co.

Edith Fowke

Folk Songs of Quebec

1957/Waterloo: Waterloo
Music Co.

Edith Fowke

Folklore of Canada

1976/Toronto: McClelland
& Stewart

1979-01-01/Toronto:
McClelland &
Stewart
1990-04-01/Toronto:
McClelland &
Stewart

AUTHOR(S)

TITLE

FIRST PUBLICATION

Edith Fowke

Lumbering Songs from
the Northern Woods

1970/Austin: University of
Texas Press

Alice Kane; Edith
Fowke (editor)

Songs and Sayings of an
Ulster Childhood
Songs of Work and
Freedom

1960/Chicago: Roosevelt
University

Edith Fowke

Songs of Work and
Protest
Tales Told in Canada

Edith Fowke

The Penguin Book of
Canadian Folk Songs

1973/Harmondsworth:
Penguin

Edith Fowke

Traditional Singers and
Songs from Ontario

Edith Fowke

Folktales of French
Canada

1985/Toronto: NC
Press

c1983/Toronto:
McClelland & Stewart

Edith Fowke

SUBSEQUENT
PUB(S).

Edith Fowke

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

Hardcopy

N/A – Foreign Work

1973/New York: Dover

Hardcopy

N/A – Foreign Work

1986/Toronto: Doubleday

Hardcopy

N/A – Foreign Work

1974-0730/Harmondsworth:
Penguin

Hardcopy

N/A – Foreign Work

1965/Ontario: Burns &
MacEachern

1965/Hatboro, PA:
Folklore Associates

Hardcopy

N/A – Foreign Work

1979/Toronto: N.C. Press

1981/Toronto: N.C.
Press

Hardcopy

N/A – Foreign Work

1961/New York:
Doubleday

1982/Toronto: N.C.
Press
1993/Toronto: N.C.
Press

EXHIBIT B

EXHIBIT C

Copyright Board
Canada

Commission du droit d’auteur
Canada

Ottawa, April 30, 2010

FILE: 2009-UO/TI-22
UNLOCATABLE COPYRIGHT OWNERS
Non-exclusive licence issued to the University of Athabasca for the digital reproduction and
communication to the public of community newspapers
Pursuant to the provisions of subsection 77(1) of the Copyright Act, the Copyright Board grants a
licence to the University of Athabasca as follows:
(1) The licence authorizes the digital reproduction and the communication to the public of the
complete contents of the following community newspapers, in their original format, published
between the dates shown, for non-commercial purposes only and subject to the limitations set out
in this licence:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Novosti (1944-1948) - Croatian
Vaba Estlane (1952-1987) - Estonian
Liekki ((1944-1973) - Finnish
Canadian Uutiset (1919-1927 / 1982-1987) - Finnish
Isien Usko (1936-1978) - Finnish
Vapaus Sana (1921-1930 / 1932-1977 / 1979) - Finnish
Viikkosanomat (1975-1986) - Finnish
Kanadai Magyarsae (1951-1977) - Hungarian
Magyar Elet (1957-1997) - Hungarian
Zwilazkowiec Alliancer (1933-1987) - Polish
Serbian Herald (1946-1948) - Serb
Edmonton Ukrainian News (1928-1971) - Ukrainian
Vilne Slovo (1934-1977) - Ukrainian
Jedinstvo (1948-1970) - Yugoslavian
Nasa Novine (1971-1986) - Yugoslavian
Bavarijas Latviesu Vestnesis (1945-1946) - Latvian
Brivais Latveitis (1948-1949) - Latvian
Liaudies Balsas (1937-1976) - Lithuanian

(2) The licence applies only to issues that are not part of the public domain when this licence is
issued.

AG 0004432

-2(3) The licence does not authorize
(a) the reproduction of individual works;
(b) the translation of the publications.
(4) The issuance of this licence does not release the licensee from the obligation to obtain
permission for any other use not covered by this licence.
(5) The licence expires in respect of each issue at the time the issue joins the public domain.
(6) The licence is non-exclusive and valid only in Canada. For other countries, it is the law of
that country that applies.
(7) The licensee shall pay $5,000 to Access Copyright, The Canadian Copyright Licensing
Agency, who may dispose of this amount as it sees fit for the general benefit of its members.
Access Copyright undertakes, however, to reimburse 6 ¢ per page to any person who establishes,
within five years of an issue joining the public domain, ownership in that issue. Should the total
amount of claims exceed the licence fee, each claim shall be reduced on a pro rata basis.
(8) The licensee shall ensure that the following notices are prominently displayed on the web
site:
“Some of the content shown is used under a non-exclusive licence issued by the Copyright
Board of Canada in cooperation with Access Copyright, pursuant to subsection 77(1) of the
Copyright Act.”
“A user may not reproduce or otherwise use any of the content found on this website unless
the contemplated use is authorized by the Copyright Act or the content is in the public
domain.”
(9) The owner of copyright in an issue is entitled to end the licence with respect to future uses of
that issue.
(10) The coming into force of this licence is conditional on Access Copyright filing with the
Board a notice of receipt which confirms that the royalties, as specified in paragraph (7) above,
have been received and that Access Copyright undertakes to comply with the conditions set out
in same.

Gilles McDougall
A/Secretary General

AG 0004433