ARL Policy Notes
Fair Use on the Orphan Map

I was excited to see Berkeley Digital Library Fellow David Hansen’s latest white paper, Orphan Works: Mapping the Possible Solution Spaces hit the Internets recently. It’s not a coincidence that Hansen’s paper comes to us just in time to help frame the discussion at Berkeley’s upcoming symposium on orphan works and mass digitization, and attendees and wannabe attendees alike will be well served by the concise overview that David provides. I want to call particular attention to his analysis of fair use, which I believe presents a very strong case for fair use as the best legal justification for library mass digitization projects involving orphan works. 

Fair Strollers

Wrong kind of fair…

Hansen walks carefully through four basic solutions: 

  • limiting liability for users who conduct a “diligent search” for rights holders (the approach taken by the US Copyright Office and by Congress in bills introduced in the mid-2000s).

  • empowering an administrative body to grant petitions for specific uses of orphans.

  • empowering private collective licensing groups (like the Copyright Clearance Center or ASCAP) who collect licensing revenue on behalf of known members to collect payment for use of orphan works, as well.

  • fair use, the flexible, open-ended doctrine codified at Section 107 of the Copyright Act, which allows unauthorized use of copyright protected works if the use is “fair,” a determination made by judges balancing four statutory factors and the overall purposes of copyright.

While each of these solutions has its attractions for different users contemplating different projects (and for rightsholders looking to maintain control of their work), Hansen’s exposition suggests to me that fair use presents the strongest strategy for libraries considering mass digitization. 

Fair use has some significant advantages over the alternative solutions:

  • Unlike diligent search requirements (and, presumably, administrative solutions that require petitions to specify individual works to be used), fair use can operate at scale. No mass digitization project can afford to spend the time and resources required to do an individualized search to determine the identity of a rightsholder for each ingested work. The Copyright Office has acknowledged that its proposed solution would not be feasible for large scale digitization projects, issuing a report in late 2011 describing possible alternatives. By contrast, Hansen points out that a library engaged in mass digitization can do a significant portion of its fair use analysis in a single argument across broad swaths of works because the first statutory factor (the purpose of the use) will be the same in every case. And courts have placed great emphasis on the first factor, often letting it drive the examination of the rest of the factors and ultimately the conclusion that a use is fair. If a library can make a strong claim that it’s purpose is “transformative,” a court could apply this analysis to the entire project without delving deeply into the characteristics of individual works. Also, as Hansen rightly points out, a library designing its own regime under the flexible standards of fair use could take a more reasonable approach to determining how much investigation is really needed to determine that a work is not on the market, which could be relevant under the fourth fair use factor. 

  • Unlike extended collective licensing, fair use doesn’t require users to pay collecting societies a wasteful fee for permission to use works that none of their members actually own. Such collecting societies have been known to engage in sketchy and even criminal behavior in some cases, pursuing licensing revenue extremely aggressively (sometimes at the expense of fair use, such as in the CCC-funded lawsuit against Georgia State University). They can rack up high administrative costs, and yet make relatively modest payouts (if any) to non-superstar artists. Of course, in the case of orphan works, the creator will almost by definition not see a penny of whatever royalty is collected. There is little to gain from placing orphan works in the custody of these groups, other than a windfall for their administrators. 

  • Unlike any option that will require legislative action, fair use is already the law. This is important because Hansen’s brief history of the orphan works bills in the US Congress shows that certain rightsholder groups are sufficiently fearful about misuse of their abandoned property that seemingly no search will be sufficiently diligent for them. The situation has hardly improved in intervening years, with more lawsuits injecting more tension into the relationship between libraries and rightsholders. If a solution must be reasonably likely to come into being before it merits serious consideration, any solution that requires a change in the law will fall short.

Now, it is certainly true that for some users and some uses - folks who want to commercialize out-of-print works, for example - other models will make much more sense, as fair use will not be available. If and when Congress considers whether and how to address the orphan works questions raised by other parts of the cultural ecosystem, they will surely need to look beyond fair use. But for libraries, the best answer for orphan works and mass digitization may be a doctrine we’ve already relied on for over a century: fair use.

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