Library Copyright Alliance Responds to Copyright Office Inquiry on Visual Works

The Library Copyright Alliance filed a response to the U.S. Copyright Office’s Notice of Inquiry on Copyright Protection for Certain Visual Works, focusing largely on the importance of fair use and the detrimental effects of the current lengthy copyright term in the United States.

The response opens by pointing out,

In the past, the difficulty of identifying or locating the owners of the copyrights in visual works was a significant challenge for libraries.  Visual works are particularly susceptible to “orphaning” and often there is ambiguity in their copyright ownership.  This orphan work problem had a chilling effect on libraries interested in important preservation and archival uses of visual works.  It also impeded the use of collections of visual works for teaching and classroom use.  Indeed, the orphan work challenge prompted LCA to strongly support enactment of the Shawn Bentley Orphan Works Act in 2008.  However, significant changes int he copyright landscape since then convince us that libraries no longer need legislative reform in order to make appropriate uses of “orphaned” visual works in their collections.

The response then discusses the changed landscape, explaining that fair use is less uncertain today with a number of cases that have clarified the scope of this important doctrine.  Additionally, codes of best practices have guided the use of digitization and making available of special collections and archives, including for orphan works.The fact that injunctions are less likely and mass digitization is more common also promote greater comfort in using orphan works.

The statement then notes that the orphan works problem is largely a result of the current copyright term in the United States that “is already unacceptably long, limiting access to visual works that should be in the public domain.”  While not discussed in this response, it is worth noting that what is being called the last round of negotiations for the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement in the Asia-Pacific region that currently has twelve negotiating parties, copyright term will be an issue for discussion.  Leaked text has revealed efforts by the United States to push for all parties to the TPP to adopt the lengthy term of life of the author plus 70 years, despite opposition to the imposition of copyright term extension.

The Copyright Office has extended its comment deadline to October 1, so there is still time to submit a response to the notice of inquiry.