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.
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.