ARL Policy Notes
Recap of the Copyright Office’s Roundtables on Orphan Works and Mass Digitization

On March 10-11, 2014 the Copyright Office held roundtables on orphan works and mass digitization. These roundtables included nine sessions, most of which included sixteen panelists representing different organizations and perspectives.

There appeared to be little agreement on the vast majority of issues and opinions diverged widely. The greatest consensus seemed to be opposition to, or at least caution with, extended collective licensing; the Copyright Office noted, however, that some prior comments supported extended collective licensing solutions.

During the sessions, best practices, fair use, the issue of whether orphan works and mass digitization need to be treated separately, and licensing solutions were heavily referenced and discussed. Some individuals attacked recent fair use jurisprudence or claimed that their human rights were threatened by use of orphan works or mass digitization projects. Photographers in particular raised concerns that photographs are turned into orphans too quickly, particularly when images are put on the Internet. The library community seemed to agree on the vast majority of issues, with the exception of one representative from Rutgers University Libraries, and members of the Library Copyright Alliance (LCA) spoke with one voice. Below are summaries from each session.

1) The need for legislation in light of recent legal and technological developments

The first point of disagreement centered around the issue of whether there is even a need for orphan works legislation. Most members of the library community, including the Library Copyright Alliance and a representative of Harvard University, noted that they were satisfied with recent fair use jurisprudence which diminished the need for orphan works legislation. This sentiment was echoed on the next panel by several other representatives of the library community. The Association of American Law Libraries stated their support for legislation in theory, but noted that there is a risk that legislation may not ultimately be a positive. CCIA noted that the complexity and regulatory nature of past orphan works proposals have made some stakeholders oppose a legislative solution.

Others, including Association of American Publishers, Wikimedia, Authors Guild, National Music Publishers’ Association and the representative of Rutgers University Libraries argued that orphan works legislation is needed. Some of those supporting orphan works legislation pointed out that their members or stakeholders value certainty.

In addition to the need for legislation, there were many references to fair use and best practices. Some representatives of rightsholder groups voiced their concern that their stakeholders were not consulted in development of best practices. Some participants noted their approval of recent fair use jurisprudence, while conceding that fair use does not address every issue. The Digital Library Copyright Project noted its project on best practices for use of orphan works for libraries and universities. Representatives of the library community continued to look favorably both on recent fair use jurisprudence and best practices, with the exception of the representative of Rutgers University Libraries who aligned with representatives of some rightsholder groups, including the National Music Publishers Association, American Society of Illustrators Partnership and the American Society of Journalists & Authors and argued that recent court cases on fair use have gone too far.

Although the Copyright Office did not want to engage in a debate over the copyright term, several participants pointed out that the lengthy copyright term in the United States of life plus seventy years has exacerbated the orphan works problem.

2) Defining a good faith “reasonably diligent search standard”

With respect to defining a reasonably diligent search standard, there was again no agreement or consensus view as to how it should be defined and whether a flexible or rigid approach would better solve the orphan works issue. Representatives of the library community encouraged flexible standards due to the differences in users, uses and circumstances that could influence the reasonableness of a search. Additionally, a rigidly defined standard would result in the law being unable to evolve and adapt to new technologies. The American Library Association noted that the searches conducted by librarians reveal sincere efforts to find the rightsholder. A representative of International Documentary Association and Film Independent, pointed out that overly rigid guidelines could result in failure because the legislation would not be used. The Society of American Archivists noted that a high standard for reasonably diligent search could prove too costly and make digitization efforts unsustainable.

Others suggested that a reasonably diligent search standard must have minimum standards and encouraged a more rigid approach in order to provide more certainty. The Motion Picture Association of America and the National Portrait Gallery representatives pointed out that minimum standards could still be flexible.

Some participants offered the following considerations in defining a reasonably diligent search: cost, commercial versus noncommercial intent, free market solutions, type of the work, age of the work and the use of the Copyright Office records. Another issue was whether a reasonably diligent search was possible for mass uses. There was no consensus on any of these issues.

Best practices were again referenced during this session, with many pointing out that they draw on the expertise of the community. Additionally, as noted by the International Documentary Association and Film Independent, best practices can evolve and there have been no specific allegations of misuse in these best practices. Responding to suggestions that the Copyright Office should facilitate drafting of best practices created by rightsholders and the user community, the Library Copyright Alliance pointed out that such negotiations would be long, delay the process at the outset, and could be fruitless, as evidenced by the widely diverging opinions expressed throughout the round table.

3) Role of private and public registries

The Society of American Archivists noted that registries cannot solve all issues and that the majority of orphan works are personal documents. SAA also cautioned that any solution must take into account the cost in searching for an orphan work.

Some of the panelists argued for global registries, while others advocated for voluntary opt-in registries or private registries. Some suggested that there is a need for multiple registries and that users of orphan works must find a way to search all the existing registries.

4) Types of works subject to any orphan works legislation, including issues related specifically to photographs

Much of the discussion centered on whether photographs should be included in an orphan works solution. The Association of American Publishers supported the idea that all works should be subjected to orphan works legislation. Other rightsholder groups specifically suggested a carveout for the interests they represented, such as for illustrators or musicians; others did not specifically advocate for a carveout but said that different works should be treated in a different manner. The Library of Congress pointed to the danger of excluding works such as photographs, because the same photographs are being used over and over again because of the fear in using orphaned works, skewing historical and cultural records.

The American Society of Media Photographers called artists “disenfranchised” and argued that creators would not be able to profit in an ongoing manner. The National Press Photographers Association said that there is a legitimate concern regarding finding the authors of older photographs, but noted that current photographs are instantly made orphans when they are uploaded to the Internet and stripped of their metadata.

The Digital Public Library of America advocated for “democratic access” to works, but the National Press Photographers Association opposed this idea.

During this panel, there was disagreement as to whether the Constitutional rationale of the copyright system is to promote the public benefit. Again, some panelists stated that fair use does enough to address orphan works concerns and already addresses some of the concerns discussed during the panel.

5) Types of users and uses subject to any orphan works legislation

While most panelists during this session seemed to suggest that legislation should cover both commercial and non-commercial users and uses, there was disagreement as to whether they should be treated equally. Additionally, some panelists during earlier sessions voiced disapproval for an orphan works solution that applied to commercial uses.

Several, including the Association of American Publishers, Association of Research Libraries, College Art Association, Writers Guild of America West, and the representative of Harvard University noted that the line between commercial and non-commercial can be difficult to define. Some noted that some non-profit institutions have gift shops or can engage in for-profit activities in order to sustain their non-profit work. Additionally, some commercial entities can provide genuine not-for-profit uses. The Association of American Publishers suggested that commercial entities are necessary because a legislative solution would likely be too complicated for individuals to take advantage of the legislation on their own, but who would be willing to pay for the value provided for by commercial interests.

Some panelists felt the distinction should not be whether a user is commercial or non-commercial, but that consideration should be given to whether a use is commercial or non-commercial. A representative from the Graphic Artists Guild argued that illustrators can clearly explain what are commercial uses and what are non-commercial uses, asserting that their industry would be destroyed if it were possible to use orphaned works for free in the commercial market. The Graphic Artists Guild also noted that non-commercial uses, such as for education and preservation, are already permitted under fair use.

Some arguments were made against making the law overly complicated because doing so could create confusion for individuals or, depending on the complexity, even for lawyers.

6) Remedies and procedures regarding orphan works

This session discussed limitations on monetary damages and injunctions. Most, but not all, participants supported limitations on injunctions because without such limits, no one would take advantage of a solution in which they must invest large amounts of money.

With respect to monetary damages, participants suggested the following: reducing or remitting statutory damages, remitting attorneys fees, and increasing damages for bad actors. Some felt that different standards for different works are appropriate and looking at the circumstances, such as the time or age of commercialization could be taken into account. A representative of the Digital Media Association opposed words like “reduce,” “remit,” or “increase,” arguing that the focus should be on reasonable compensation instead.

The National Press Photographers Association advocated heavily for a small claims court and stated that any orphan works solution should be tied to a willingness to participate in a small claims court.

The National Writers Union argued that the solutions being discussed resulted in blaming the victim and suggested that it is the users of orphan works that should be required to register and notify the public of the intent to use such works.

7) Mass digitization, generally

Throughout the roundtables, many participants argued that orphan works and mass digitization are different issues and must be separated. The panel on mass digitization was the most contentious of the all the panels spanning both days, with attacks on libraries and the Authors Guild making several explicit threats to sue libraries that digitize under a claim of fair use. The contentiousness of this panel highlighted the likely impossibility in coming together to find any solution.

Participants discussed whether fair use applied to mass digitization or whether its use goes too far. The Library Copyright Alliance pointed to several cases supporting the argument that digitization is considered fair use. Although some participants throughout the roundtables dismissed HathiTrust and Georgia State University because both case are on appeal the Library Copyright Alliance noted that the fair use argument is supported by a number of cases that have been decided by several circuits. Again, the library community largely supported the reliance on fair use for digitization projects, with the exception of the representative of Rutgers Universities Libraries. The representative of the University of Michigan, after several attacks on libraries and reliance on fair use, stated that the attacks were unfounded and that libraries are conscientious actors, not pirates. A representative from American University/Creative Commons USA stated that format shifting was clearly fair use, though questions may arise as to the uses after format shifting has taken place.

The Authors Guild disagreed and argued that digitization violates fair use and Section 108. The representative of the Authors Guild issued a “warning” that if libraries continue to digitize and argue fair use, then the Authors Guild would bring lawsuits for this type of behavior. The MPAA stated that it was comfortable with the case-by-case basis approach of fair use, but argued that it is impossible to consider application of fair use in a mass digitization case where you might have 20 million books. The National Press Photographers Association noted that one of the particular problems for photographers is the public perception that everything on the Internet is in the public domain.

As expected, some of the discussion covered the HathiTrust case. The representative of the National Press Photographers Association likened the case to Plessy v. Ferguson, a Supreme Court case from 1892 that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education. The National Press Photographers Association argued that HathiTrust had been decided incorrectly and that just because Plessy v. Ferguson was the law for decades, it did not make the law right.

The representative from the Library of Congress pointed to the high costs of mass digitization, stating that it is not as simple as throwing a document into a scanner. He pointed out that there is a value add in what they do by making scans ADA compliant and that there is proper quality control, all of which results in costs to the institution. The Museum of Fine Arts, Boston added that digitization offers new benefits and value, such as providing 360 degree rotation of sculptures or vases, which would not otherwise be available.

8) Extended collective licensing and mass digitization and 9) Structure and mechanics of a possible extended collective licensing system in the United States

Sessions eight and nine overlapped, not only with respect to content but also with some of the same panelists. The participants at the sessions seemed to oppose or were at least wary of extended collective licensing.

Some pointed to the problems of collecting societies including that little money is actually distributed to the creators, there can be a lack of accountability, and they do not take into account the different interests of different authors. A couple of panelists also pointed out that extended collective licensing could come into tension with antitrust laws and that ultimately the states will end up with most fees due to unclaimed property laws.

Most panelists agreed that an individually negotiated license should be the first preference. Many panelists from rightsholder communities stated that voluntary licensing has worked in their communities. Many also pointed out that the United States does not have much history, tradition or experience with extended collective licensing regimes.

One participant noted that extended collective licensing creates an unnecessary tax and can damage fair use; only where fair use does not apply should one seek a license. This participant also pointed to the great value-add that has resulted from mass digitization projects undertaken by libraries.

The National Federation of the Blind cautioned against extended collective licensing because of the huge benefits that mass digitization has provided for persons who are blind or print disabled. He noted that anything that had a chilling effect on mass digitization would likely limit access for persons who are visually impaired and noted concerns with economic disincentives to digitize works.

Conclusion

Written comments are due to the Copyright Office by April 14, 2014. Judging from the discussions at the orphan works roundtable, however, it appears unlikely that the Copyright Office will be able to find a consensus view to please all stakeholders. The views expressed at the roundtable were widely divergent and it seems highly unlikely—given various threats and attacks on libraries as well as the extreme rhetoric regarding fair use—that all stakeholders could come together to find a solution. Even where it seemed like many participants agreed, such as opposing extended collective licensing regimes, the Copyright Office pointed out that some comments submitted in previous requests for comments supported such collective licensing.

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  3. bc-butler reblogged this from arlpolicynotes and added:
    Great recap from Krista Cox at ARL.
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