The question is: access at what cost? Google will be the only company that can offer millions of orphan works, about 70% of all books scanned, without fear of litigation. Google will receive 37% of the revenue from the use of these works, and the Registry will divide up the remaining 63% among Registered Rightsholders – by definition excluding the absent rightsholders of orphan works. What incentive is there to find the orphan rightsholder when both Google and the Registry will have to take a smaller piece of the pie?While competitors may contact Rightsholders or the Registry, they must do so one-by-one. The transaction costs alone will prevent entry; Google eliminated these transaction costs only by the class-action nature of the settlement. The circumstances that allowed Google to make this settlement are unlikely to be repeated.With orphan work legislation stalled, the fear is Google will maintain a complete monopoly on the use of orphan works and will charge appropriate monopoly prices. Again, access at what cost?
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