ARL Policy Notes
LCA submits additional comments to the Copyright Office on orphan works and mass digitization

On Friday, May 16, 2014, the Library Copyright Alliance submitted additional comments on orphan works and mass digitization in response to the Copyright Office’s notice of inquiry. These comments address the discussions from the March 10-11, 2014 public meeting on orphan works and mass digitzation noting the complete lack of consensus on these issues, the concerns regarding extended collective licensing solutions, and the appropriateness of best practices developed by user communities. The first day’s transcript of the public meeting is available here and the second day’s transcript is available here.

No Consensus on Orphan Works Legislation

In response to the Copyright Office’s request for comments in 2013, LCA noted that the opinions submitted represented diverse and wide-ranging opinions, suggesting that it would be extremely difficult to find consensus on these issues. The public meeting highlighted the continued diversity of opinion and “the divisions between different communities may be even deeper now than before.” The additional comments filed by LCA summarize the comments and divisions made during the panels.

LCA’s additional comments point out that there was hostility during the public meeting which, “exposed a basic divergence concerning the correctness of fair use decisions over the past decade. Indeed, one rights holder representative compared the recent fair use case law to Plessy v. Ferguson, suggesting that these fair use holdings were as legally and morally flawed as the Supreme Court’s 1892 ruling upholding the ‘separate but equal’ doctrine. The inflammatory nature of this analogy was exceeded only by another rights holder representative threatening three times during the course of one panel to sue libraries …”

Extended Collective Licensing

The LCA comments note that unlike the other topics discussed, the discussion regarding extended collective licensing (ECL) seemed to be in agreement that ECL would not be an effective solution to issues relating to mass digitization. The comments submitted by LCA summarize the discussions from the public meeting, which highlighted the problems of collecting societies. Additionally, the LCA statement points to comments made with respect to the value-add of mass digitization projects undertaken by libraries and benefits mass digitization has provided for persons who are blind or print disabled.

Best Practices

LCA’s additional comments also cover statements made regarding best practices at the public meeting, pointing out that “representatives of libraries, archives and documentary filmmakers noted that the best practices developed by their communities provided useful guidance concerning the application of fair use to activities relating to orphan works and mass digitization.”

The comments also address the arguments by right holders that these best practices do not have validity because they were not developed in consultation with right holders. LCA notes that “To the contrary, codes of fair use best practices developed by specific communities do have legal significance” and that community use may help judges make fair use determinations. Furthermore, the comments point out that the best practices “are not intended to be negotiated compromises that take the place of legislation. Rather, they are intended to be expressions of norms and customs relating to specific uses in specific communities.” Additionally, negotiations around best practices on these issues with rightholders are likely to be futile.

LCA’s comments highlight ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries which provide nuanced fair use guidance for libraries in a variety of circumstances, including situations relating to orphan works and mass digitization. These situations include, for example, addressing preservation of at-risk items; creating digital collections of archival and special collection materials; creating databases to facilitate non-consumptive research uses; and collecting material posted on the World Wide Web and making it available.

House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works; Testimony of James Neal, Endorsed by LCA

On Wednesday, April 2, 2014, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Mr. Gregory Lukow (Chief, Packard Campus for Audio Visual Conservation, Library of Congress); Mr. Richard Rudick (Co-Chair, Section 108 Study Group); Mr. James Neal (Vice President for Information Services and University Librarian, Columbia University); Ms. Jan Constantine (General Counsel, The Authors Guild); Mr. Michael C. Donaldson (Partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association); and Mr. Jeffry Sedlik (President and Chief Executive Officer, PLUS Coalition). Written testimony from each witness is available here.

Neal’s statement, endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: 1) the importance of library preservation; 2) how the library exceptions under Section 108 supplement rather than supplant fair use; 3) the diminished need for orphan works legislation; and 4) perspective on the HathiTrust case.

Library Preservation

The written testimony emphasize that providing access to collections of preserved materials is a critical part of libraries’ missions. It notes that with the digital age and new technology, new challenges for preservation have emerged to ensure that new media, which represent a substantial part of the cultural record, are adequately preserved. Neal’s statement gives several examples from his experience at Columbia emphasizing the need to format shift and preserve materials in different formats, including content that existed on short-lived websites. The statement further notes that in order to achieve this mission, libraries “require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”

Relationship Between Section 108 and Fair Use

The statement points to the privileged status of libraries throughout the Copyright Act, with seven specific examples. For example, the statement notes that Section 504(c)(2) shields libraries from statutory damages where the library reasonably believed their activity constituted fair use. Section 12014(b) excludes libraries from criminal liability under the DMCA. And, of course, Section 108 provides libraries and archives with a clear set of exceptions for certain activities.

The written testimony emphasizes that Section 108 does not represent the totality of exceptions and limitations from which libraries may benefit, as the Authors Guild initially argued in HathiTrust, and that fair use, amongst other exceptions, may also be relied upon. Without being able to rely on fair use and other exceptions that exist in other sections of the Copyright Act, libraries, including the Library of Congress, would be considered serial infringers. Further, Section 108(f)(4) clearly and unambiguously provides that nothing in Section 108 “in any way affects the right of fair use” and the legislative history supports the meaning of the plain language of the statute. Scholars and case law similarly support this clear reading of the interplay between Section 108 and Section 107.

Furthermore, fair use sufficiently updates Section 108 and it is therefore unnecessary to make legislative changes to Section 108. Neal notes that, as a member of the Section 108 study group, a report was issued after three contentious years, reflected only a high level agreement, and did not resolve many important issues because of the lack of agreement. The statement highlights a concern that some of the Study Group’s recommendation could limit what libraries do today. This section of the statement concludes, “The fact that Section 108 may reflect a pre-digital environment does not mean it is obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Furthermore, Section 108 provides courts with importance guidance concerning the application of Section 107.”

Orphan Works

The statement also notes that from Neal’s perspective and of LCA’s, orphan works legislation is no longer necessary because the “gatekeeper” problem has diminished due to greater certainty regarding fair use, including recent jurisprudence in this area in a wide range of cases. Furthermore, the Code of Best Practices has provided reassurances with respect to orphan works in a special collection as well as digitizing and making available materials in special collections. In addition to fair use developments, there is less likelihood that injunctions will be issued since the Supreme Court’s 2007 ruling in eBay v. MercExchange which changed the presumptions regarding injunctions in cases of infringement. Furthermore, mass digitization has become more common. In addition to these developments, the clear disagreement over an orphan works solution suggests that a legislative solution regarding orphan works, mass digitization or Section 108 will be very difficult if not impossible.

HathiTrust

The fourth section of the statement explains the HathiTrust project and discusses the litigation initiated by The Authors Guild. The statement goes into Judge Baer’s district court decision in detail and expresses the “hope that the Second Circuit will agree with Judge Baer that HDL (HathiTrust Digital Library) preserves important works, allows them to be searched, and provides access to the print disabled, without causing any economic harm to rights holders.

Orphan Works/Mass Digitization Roundtables: Copyright and Fair Use Myths and Realities

During the orphan works roundtables, several participants attacked fair use and libraries, misstated the purpose of the copyright system in the United States, or inaccurately portrayed the activities of HathiTrust. Here are just some of the misconceptions or myths cited at the roundtable and responses to these inaccuracies:

Myth 1: Fair use is too uncertain

Some advocates of a legislative orphan works solution argued that legislation is necessary because fair use is too uncertain or unpredictable.

Reality: Fair use is a fairly predictable doctrine

Fair use is actually fairly predictable. Professor Pamela Samuelson wrote an article in 2009 entitled, Unbundling Fair Uses which concluded that “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” In fact, the Australian Law Reform Commission (ALRC) pointed to this very article when proposing that Australia adopt a fair use provision. The ALRC went on to note that fair use factors can represent “a clear principled standard [that] is more certain than an unclear complex rule.” In recent testimony before the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet, Professor Peter Jaszi (American University) similarly stated that fair use jurisprudence is predictable and coherent.

Myth 2: Recent fair use jurisprudence consumes Section 108 and renders the provision meaningless

Some have argued that applying fair use to activities not explicitly permitted under Section 108 makes this specific limitation, as well as others that libraries rely on, meaningless. They also suggest that fair use goes too far when applied where Section 108 does not apply.

Reality: Section 108(f)(4) includes an explicit savings clause that fair use still applies

Section 108(f)(4) provides that “Nothing in this section—in any way affects the rights of fair use as provided by section 107…” The plain language of the statute could not be any more clear: “Nothing … in any way affects the rights of fair use.” It is obvious that fair use applies even where a specific limitation or exception codified under Section 108 does not, subject of course to evaluation of the four fair use factors. Some argue against the plain language by asking what the purpose of Section 108 is if libraries can simply rely on the fair use provision of Section 107. Explicit limitations and exceptions can be beneficial in providing certainty for certain activities, particularly for those that are risk adverse, or apply where fair use might not. Libraries rely on a mix of purpose specific limitations and exceptions as well as fair use in order to achieve their public service mission and respond to evolving technology.

Myth 3: Fair use being used as an excuse by the library community to perform activities not covered by specific limitations or exceptions

Several participants claimed that fair use was just an excuse being used by the library community where specific limitations do not exist. Others argued that fair use has gone too far and has made copyright the exception to fair use.

Reality: Libraries are a conscientious and risk adverse community. Fair use is being used after careful thought and based on solid legal footing

Although there are numerous purpose specific limitations and exceptions that libraries rely upon, they do not cover every situation and fair use has long been relied upon where specific exceptions do not exist. Libraries are not pirates, but rather, are trusted institutions serving a public mission to provide access to knowledge and culture within the boundaries of the law.

The Code of Best Practices in Fair Use for Academic and Research Libraries notes that “how judges have interpreted fair use affects the community’s ability to employ fair use.” The practices of libraries are grounded in court decisions and judicial interpretations of the fair use doctrine.

Myth 4: Fair use clearly prohibits any uses that have an effect on the market

One commentator at the orphan works roundtable repeatedly argued that relying on fair use for any uses that have an affect on the market violates copyright law and is an infringement of a creator’s rights.

Reality: Fair use is a flexible standard and all four factors are considered together

Fair use is not designed to require satisfaction of all four statutory factors, but instead are considered together. The four factors include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value for the copyrighted work.

The Supreme Court has explicitly stated that the factors are not to “be treated in isolation from one another. All are to be explored and weighed together, in light of copyright’s purpose” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Following this line of reasoning, circuit courts have confirmed that a defendant does not need to prevail on each of the four factors in order to successfully rely on fair use.

Myth 5: Copyright’s primary purpose is free expression and not to promote the public benefit

A disagreement broke out during one of the panels, with one person arguing that there is no legal basis for the argument that copyright’s primary purpose is to promote the public benefit.

Reality: The Constitution clearly states that the purpose of the intellectual property system is to “promote the progress of science of the useful arts” and the Supreme Court has repeatedly pointed to the importance of the public interest

Article 1, Section 8, Clause 8 of the U.S. Constitution sets forth the constitutional rationale for the intellectual property system: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Supreme Court has repeatedly noted that this clause is both a grant of power and a limitation for Congress.

In Sony Corp. of America v. Universal City Studios, the Court cited past precedent dating back to 1932 that “The copyright law, like the patent statutes makes reward to the owner a secondary consideration” and that “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors” (emphasis added). Additionally, the Supreme Court noted that “The immediate effect of our copyright law is to secure a fair return for an ‘author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good” (emphasis added).

Additionally, fair use is an important limitation to copyright and has been upheld by the Supreme Court as a “First Amendment safeguard.”

Myth 6: Best practices in fair use are a contemporary/recent standard and not known by creators

One participant discounted the value of best practices because they have only been developed recently and have not withstood the test of time. Another suggested that the communities themselves did not create these best practices.

Reality: While many codes of best practices are recent, these practices contained within the codes have been used prior to being collected in a code

Codes of best practices do not appear out of thin air. The Code of Best Practices in Fair Use for Academic and Research Libraries, for example, was created in consultation with 150 research and academic librarians across the country. The Code of Best Practices draws upon the experiences of academic and research librarians and is a compilation of their best practices. Although not every librarian might agree with every principle, limitation or enhancement, as pointed out during the roundtable by one of the principal authors of this Code, Brandon Butler, such librarians are in the minority. While the aggregation of these best practices into a single document may have occurred recently, the practices themselves are not new to many libraries.

Myth 7: Digitization without authorization is not fair use. Other than the district courts in HathiTrust and Georgia State, courts have not approved of these types of activities.

Some participants discounted the district court decisions in HathiTrust and Georgia State University, noting that these cases were still in their first round and that circuit courts had yet to decide the case. Others stated that other than these two district courts, no courts have approved of these activities as fair use

Reality: Numerous circuits have upheld mirror image copies as transformative and applied fair use

Although HathiTrust and Georgia State University do involve new issues of mass digitization, several circuit courts have addressed whether mirror image or exact copying is fair use, finding that transformative copies are protected by fair use. The Fourth Circuit in A.V. v. iParadigms, for example found that using student papers to create a plagiarism database was protected under fair use. Similarly, in Perfect 10, Inc. v. Amazon as well as Kelly v. Arriba Soft Corp., the Ninth Circuit found that using website images to create a search index constituted fair use. Likewise, the Second Circuit upheld fair use in Bill Graham Archives v. Dorling Kindersley for the use of concert posters in a book. These cases provided a solid basis for the HathiTrust _and _Georgia State University decisions and suggestions that the district courts went rogue and circuits have not approved of these types of activities are incorrect; circuit after circuit has upheld mirror image copying as fair use. While it is true that both HathiTrust and Georgia State University are on appeal, there are strong legal arguments supporting the application of fair use to mass digitization in these cases.

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.

I don’t know the behind-the-scenes details (although my wife, Holly Robertson, was involved in the early days of this project when she worked at UVA), but I think there’s enough information in this press release to say that UVA’s efforts here are emblematic of the new era in special collections digitization and access.

Here are some things that strike me about this project:

  • They are digitizing everything, period. This is the new normal: collection-level decisions are the only ones that make sense in terms of efficiency, these days.

  • Everything will be available online to the public, and searchable. Hiding collections and limiting access is always an option, but the broadest possible public access is always the goal. The search function is also important, as libraries realize that access alone is not worth much without robust tools to parse the collection.

  • The WSLS collection is A/V material, which we found in our conversations with librarians two years ago is perceived as more “risky” than text, even though the copyright law doesn’t distinguish between different media. Libraries are getting over that fear, as reflected in the Librarians’ Code, which makes no distinctions among media.

  • Ownership issues are likely at least to be a bit cloudy. The television station is defunct, the people depicted on-camera and the production crew behind it are long gone or difficult to find, etc. To wait for an unimpeachable grant of permission could likely have derailed this project completely, but UVA was undeterred. This is the growing consensus in the library and archive world: orphans are everywhere and there will almost never be any such thing as a “perfectly cleared” special collection. Know your rights, manage your risk, be open and accommodating to any concerns or complaints, and go forward.

Congratulations to UVA on this exciting achievement!

via Emily Goodhand, who asks one of the right questions: what happens to unpaid monies? Another right question: who collects the money? And another one: what does this have to do with incentivizing the creation of new works, since no author would be motivated one way or the other by what happens to her work if she disappears?

I suspect the real issue here is revealed by the one supporter of the measure, who is quoted saying that non-orphan rightsholders don’t want to have to “compete” with orphans that are free to use unless/until a rightsholder shows up. This is about raising costs to protect incumbent rightsholders, with no benefit to the public.

Notes from Register Pallante’s “The Next Great Copyright Act”

By Greg Cram, Rights Clearance Analyst, The New York Public Library

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

  1. Incidental Copies

    —Not all copies are the same

    —Perhaps there could be discrete exceptions for certain incidental copies

    —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

  2. Public Performance Right for Sound Recordings

    —Copyright Office is a “strong supporter” of a public performance right for sound recordings

    —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

  3. Stronger Enforcement

    —The new law must respect the integrity of the internet, including free speech

    —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

    —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

  4. Small Claims

    —The Copyright Office is studying this issue

    —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

    —The Copyright Office could, potentially, take a lead role in administering small claims

  5. Statutory Damages

    —Review registration requirements

    —Look at statutory damages from all angles

    —Statutory damages are important part of copyright act and should be retained

    —Need to provide guidance to courts about how statutory damages should be applied

  6. The Digital Millennium Copyright Act

    —The Internet has evolved since DMCA passage in 1998

    —Congress should review the § 512 safe harbors

    —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

  7. Registration and Deposit of Published Works

    —The deposit requirements for registration should remain in next copyright act

    —Congress should review the legal incentives for registration

    —How can the Library of Congress add born digital works to its collection through this process?

    —The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

  8. First Sale

    —Digital first sale will be an issue on the table

    —Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

  9. Other Exceptions/Limitations

    —The libraries and archives exception in § 108 should be updated

    —Update exceptions for the blind and print disabled in § 121 for the digital world

    —Explore new exception for higher education institutions

    —Personal space-shifting

  10. Licensing

    —Need to review growth of licensing schemes

    —Review mechanical licenses

Now the “bold” issues:

  1. Term of 50 years, renewable for an additional 20

    —The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

    —However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

    —This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

    —Modeled after § 108(h), something the Copyright Office is very fond of

    —This proposal would be acceptable under various international treaties, including the Berne Convention

  2. Opt-Out v. Opt-In

    —Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

The initial comments showed that there is very little consensus around this issue, and hence little hope of a legislative solution. The Copyright Office should focus on supporting fair use, digitizing its records, and other non-legislative solutions. If legislation is pursued, it should be a simple, flexible limitation on remedies where a judge determines that a reasonably diligent search occurred.

Library Copyright Alliance Comments on Orphan Works and Mass Digitization

On Monday, January 14, 2013, the Library Copyright Alliance (LCA) (whose members are the American Library Association, Association of Research Libraries and Association of College and Research Libraries) filed comments (PDF) with the U.S. Copyright Office in response to their October 22, 2012, Notice of Inquiry about the current state of play with orphan works and mass digitization.

If only it were this easy…

The Office is seeking comments regarding “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.”

In its comments, LCA explains that “significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.” Specifically, two key developments make it possible for libraries to engage in mass digitization and other projects that involve orphan works:

  • Court decisions (and the #librarianscode!) have further solidified libraries’ rights under fair use; and

  • Libraries have successfully engaged in a range of projects involving orphan works and mass digitization.

While other communities may prefer greater certainty concerning what steps they would need to take to fall within a safe harbor, libraries can rely on their existing rights, including fair use. If Congress does consider legislation, LCA suggests that Congress abandon the overly complex arrangement it arrived at in 2008 and instead make a simple one sentence amendment to the Copyright Act giving courts the discretion to reduce or remit statutory damages in appropriate circumstances.

LCA also submitted to the Copyright Office a stand-alone policy statement on the kind of copyright reform that could benefit libraries. Originally published by LCA in May 2011, the statement emphasizes the same fundamental principles as the LCA comments: confident reliance on fair use and related rights together with the suggestion of simple reform focused on limiting remedies against libraries acting in good faith.

LCA encourages librarians and libraries to submit comments, which are due February 4, 2013, and can be submitted online here.

The Library has been supporting the legislation with one minor proviso: that in the case of orphan works, we can provide payment to rightsholders if and when they appear, rather than handing money over in advance to a governmental fund that will only rarely be used.
Ben White at the British Library, writing for the New Statesman. Not a minor proviso, IMHO - an extended collective licensing regime that would have libraries paying up front to use works that are abandoned would be a massive waste. Much more reasonable for libraries to pay as appropriate on the very rare occasion that a rightsholder surfaces and demands compensation.