In June 2015, the Copyright Office released its report on Orphan Works and Mass Digitization. When the report was released, ARL noted flaws with the report for both the orphan works legislation recommendation and the mass digitization/extended collective licensing pilot program proposal pointing out that libraries rely heavily on fair use. The Library Copyright Alliance (LCA) also submitted a response to the report. Subsequently, the Copyright Office released a Notice of Inquiry (NOI) regarding its proposed pilot program for mass digitization and extended collective licensing.
LCA submitted comments in response to the NOI which point out the impracticality of the proposed pilot program and urges the Copyright Office to reconsider its decision to proceed with a pilot. It points out that while the Copyright Office models its proposal off the Google Books Settlement (NB: the settlement was rejected by the district court, but Google’s use was held to be fair use. On October 16, 2015, the Court of Appeals for the Second Circuit upheld the district court’s determination that the Google Books project is fair use), the circumstances of the settlement are starkly different from present circumstances.
LCA’s response also highlights the inappropriate policy choices of the pilot program. For example, the Copyright Office’s report suggests that depression-ear photographs would be the type of collection that could fall under the program. However, this is exactly the type of collection that would likely be fair use and therefore not subject to a license. LCA’s comments conclude:
Accordingly, sensible public policy would favor an exception permitting free access to digitized, commercially unavailable books for nonprofit educational and research purposes. Congress has adopted other specific exceptions for nonprofit uses as it has sought to achieve a balance in Title 17 among the interests of the diverse stakeholders in the copyright system. See, e.g., 17 U.S.C. §§ 108, 109(b)(2), 110(1), 110(2), 110(3), 110(4), 110(6), 110(8), 110(9), 112(b), 112(c), 112(d), 121, and 1201(d). Therefore, we strongly suggest that the Copyright Office move away from an ECL, with all its impracticalities and costs, and instead study a framework for a true exception permitting access to digitized, commercially unavailable literary works for nonprofit educational and research purposes.
In addition to LCA’s comments, several other library consortium or associations also filed responses to the NOI, including the Boston Library Consortium, the Association of Southeastern Research Libraries and the Triangle Research Libraries Network.
The Boston Library Consortium (BLC) submitted comments opposing the ECL framework proposed by the Copyright Office because it would “(1) impose significant new burdens on libraries and archives, (2) limit access to and use of existing unused works, and (3) is strikingly unnecessary, since libraries and archives, rightsholders, and users alike currently benefit from reliance on fair use and and individual, careful judgment by libraries and archives.”
BLC’s comments point to several specific digitized collections from Boston College and the University of Massachusetts Amherst. It notes that Boston College digitized collections of Boston College history or alum; of the Baltimore-based advertising and music firm, John Donnelley & Sons Records; and a collection of records of former Speaker of the House “Tip” O’Neill. The comments then point out that the University of Massachusetts, Amherst digitized W.E.B. Du Bois’ letters, essays, lectures, fiction, nonfiction writing, research notes and photographs. The comments note that the Copyright Office’s pilot proposal would discourage these types of important projects or possible make them “completely infeasible.”
BLC’s comments also point out that:
Under Existing Law, Libraries and Archives Have a Proven Track Record of Developing Approaches to Digitization that Carefully Balance the Rights of Subjects and Potential Copyright Claimants with the Benefits to the Public of Digitization.
As the digital age developed, libraries and archives took a characteristically cautious and risk-averse approach to digitization of collections, carefully doing research into the copyright status of collections, the return on investment of trying to ascertain rightsholders, the potential liability risks, and numerous other potential avenues of risk and harm.
Growing confidence in the profession’s ability to discern potential areas of trouble, as well as an increasingly robust line of fair use cases, has led to many institutions feeling confident in digitizing and providing access to material potentially in copyright, and in establishing procedures to address any legitimate concerns.
This comfort level was well expressed in two recent “Best Practices in Fair Use,” which examined the professional practices of librarians and archivists, and captured the conclusions of the profession based on its decades of experience.
In the ARL Code of Best Practices, librarians agree that fair use supports the use of materials from collections to create physical and virtual exhibitions, facilitating “public awareness and engagement” and “promot[ing] new scholarship” with these collections. The considered opinion of librarians and archivists is captured in provisos, such as recommending full attribution, appropriate levels of resolution or portions, curatorial context, and technological measures as appropriate, and cautioning against extending the rationale to support souvenir sales or other commercial uses.
Exhibitions are a more limited use of collections, but the ARL Code of Best Practices also addressed wholesale digitization of entire collections. Here again the experiences of librarians and archivists were distilled into guidelines laying out circumstances which decades of experience have shown to affect the equities of use of the works, either through fair use of copyrighted works or substantive rights of subjects of works. Libraries and archives’ attention to potential claimants’ rights is demonstrated in the guidance that, “Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.” While the relative lack of complaint suggests that libraries’ curation and screening efforts are well-placed, the eagerness to address any such concerns further attests to the good faith efforts by which libraries and archives generally operate.
Most recently, the Best Practices in Orphan Works expanded on such questions in detail, providing additional clarity to concerns about, for example, public access, third party use of collections, and quality of digitized artifacts . . .
[ . . . ]It is no accident that the case law regarding copyright infringements by libraries and archives is exceedingly sparse, and virtually non-existent with respect to special collections. It is in fact a testament to the careful attention to the equities that librarians and archivists provide, as well as a reflection of the obvious fact that for many “orphan works,” no claimants exist.
The Association of Southeastern Research Libraries (ASERL) submitted comments that note, “ASERL finds the concept of Extended Cooperative Licensing to be questionable at its core, as it proposes to create a new organization and empower it to establish and collect royalties for content for which it has no rights or authority . . . Moreover, implementing an ECL model would have a profound chilling effect on the efforts by libraries and other cultural heritage organizations to improve public access to their collections for research, teaching and learning.”
Like BLC’s comments, ASERL points to several digitization efforts by its member libraries including the Arthur Scott Photograph Collection at George Mason University, which includes photographs taken by Arthur Scott from his work from 1934-1974 as well as other photographs and correspondence; and the EU Pix Collection at Emory University which includes a large mix of items. The comments point out that the proposed ECL model would threaten these collections. Additionally, the ASERL comments point out that the complexities of the program would lead to uncertainty and:
The resulting fear, uncertainty, and doubt created by these proposals would contribute to libraries foregoing their digitization efforts in order to reduce the risk of possible legal entanglements.
In short, these proposals would result in libraries being unable to digitize collections that would, under current rules, never stretch the bounds of legally defined fair use. It is easy to imagine the eventual impacts: Without the ability to digitize library collections, access to a large body of content would be restricted. A student or researcher would not be able to benefit from the content held at the nation’s research institutions without incurring the time and expense of traveling to each library in person. This would curtail American scientific and commercial innovation, limit our cultural and historical insights, and inhibit the growth of artistic knowledge. The results are incalculable.
Instead, ASERL members remain focused on the underlying purpose of copyright, “to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” We believe libraries should continue to rely on the well-established principles of fair use as annunciated in the Copyright Act, 17 U.S.C. § 107. These principles have served libraries and interested copyright holders remarkably well over time. The current legal framework provides a fair and equitable means for resolving disputes relating to works that have been digitized and made available on the internet. Fair use has survived multiple legal challenges, ensuring libraries and other cultural heritage organizations can continue to provide improved access to the nation’s intellectual and cultural output.
The Triangle Research Libraries Network (TRLN) comments state that “While we appreciate the Copyright Office’s interest in this issue, we believe that the Office’s mass digitization licensing proposal would be ineffective and inefficient.” The comments point out that,
We have digitized countless in-copyright works, either with permission from rightsholders or under the doctrine of fair use or other legal defenses, coupled with a takedown mechanism, should that prove necessary.
From among our vast holdings and digitization projects, we are unable to identify a single instance in which we would benefit by pursuing a license under an extended collective licensing (ECL) system like the one proposed by the Office.
The comments point out the many problems of collective management organizations (CMOs). For example, TRLN’s comments note, “the ECL proposal does not resolve the orphan works problem; it merely shifts the burden of searching for owners from the digitizing library to a CMO. In doing so, it moves the responsibility for finding owners to an entity that has little incentive to actually locate and pay rightsholders.” Additionally, the comments note that the end users that hold copies of the works would likely be better situated to find the owners because they may have more information regarding the acquisition and provenance of the works.
TRLN libraries are unlikely to purchase an ECL license offered by a CMO. These organizations would not provide an equitable, practical solution to rights issues connected with the material TRLN libraries deem most important to digitize. In addition, much of the material that we prioritize for digitization is beyond the scope of the pilot project that the Copyright Office proposes. Our focus for digitization is on material that is not currently discoverable and on material that is unique, rare, or ephemeral. IN short, our priorities for digitization are special collections material and, often, non-textual material. While we cannot speak for all libraries, we believe our digitization experiences and priorities are similar to those of many other U.S. research libraries.
TRLN’s comments provide several examples of digitization from the University of North Carolina at Chapel Hill including the Frank Porter Graham papers (which includes digitization of 25,000 pages from the collection); a collection of historic North Carolina postcards; a unique collection of North Carolina films chronicling aspects of life in the state during the twentieth century (including oral histories, films and other works); and the Southern Folklife Collection (digitizing rare sound recordings and motion pictures).
The comments conclude:
These are materials that, for the most part, no one else holds and that are of great interest to researchers. In many cases, the authors of these works did not contemplate commercializing their creations. In many other cases, the creators are unknown. We cannot compensate rightsholders whose names are lost and whom we cannot find, but we can honor them and the work they did by preserving it, attributing it to the greatest extent possible, and making it available to the public. When it is foreseeable that they cannot be found, it does these rights holders no service to send payments to a collective management organization for a fruitless search. Consequently, we would not take advantage of the pilot program the Copyright Office proposes, because it does not fit with our needs and priorities.
[. . . ] Instead, we suggest that the Office focus on other solutions, such as finding a way to re-introduce formalities in some situations, digitizing and providing access to past Copyright Office records, and considering a more straightforward exception to the problems of orphan works and mass digitization, such as a notice and takedown system that libraries are already utilizing.
The full list of comments responding to the Notice of Inquiry is available at the Copyright Office’s website.