PUBLISHED OCTOBER 2015
by Helen Sedwick, Writer and Lawyer
For years, US and foreign legislatures have tried to find solutions to the copyright issues of orphan works and mass digitization. The challenge is balancing the interests of copyright owners in protecting their rights with the interest of the public in having access to materials that are part of our creative, historical and cultural heritage.
This year, on June 4, the US Copyright Office weighed in. Its long-awaited “Orphan Works and Mass Digitization” report (copyright.gov/orphan) is an exhaustive, 234-page survey of history, opinions, and approaches and an interesting read for anyone who wants to know how Hungary, Canada, and the United Kingdom are dealing with these issues. At its core, the report recommends amending the US Copyright Act, a law sorely need of updating on many fronts.
When Publishers Encounter Orphans
Every publisher faces the problem of orphan works sooner or later. An appealing manuscript rich with primary source materials such as letters, lyrics, and images arrives in the publisher’s office, but neither the publisher nor a team of researchers and lawyers can identify or locate every relevant copyright holder.
Does the publisher take the risk and include the materials in the book without permission, or must this book remain tucked away and inaccessible to the public because of its orphaned material?
A copyrightable work becomes an orphan work when the copyright owner cannot be determined, or if known, cannot be found. Orphan works include everything from World War II photographs to anonymous Internet postings. Tens of millions of orphan works are hidden in libraries, museums, and historical societies, not to mention attics. Many, including films by long-defunct production companies, are disintegrating because no one has an economic incentive to preserve materials that cannot be displayed without risking copyright infringement.
Orphan works fall into a black hole between works available by license and works in the public domain. Many publishers simply won’t use them because the costs of research and the risks of potential litigation are too high.
The problem is getting worse. Many copyright laws no longer require registration and notices, making rights holders harder to find. Repeated extensions of the copyright term gave rights to creators who were already long gone. And the mass digitization of library and museum collections has made millions of orphan works discoverable by anyone with an Internet connection.
For orphan works, the report lays out the general framework for amending the Copyright Act to limit the liability of users who can demonstrate that they engaged in good faith and diligent searches for copyright owners. Key points are:
- The law as amended would apply to all categories of copyrightable orphan works (text, images, recordings), whether published or unpublished, new or old (but not to works in the public domain).
- The limitation on liability would be available to all users and for all uses, whether commercial or noncommercial (other than fixations of visual works on commercial, useful items, such as mugs and T-shirts).
- Users would have to be able to prove to a court by a preponderance of the evidence that they performed good faith, diligent searches to identify and locate the owner of a work they used before they used it. The Copyright Office would publish Recommended Research Practices from time to time to provide guidance on what is considered adequate for a search.
- Users would have to file a Notice of Use with the Copyright Office. These notices would create a searchable database that copyright holders could use to police uses of their work.
- Users would have to provide attribution to the legal owner if known.
- Users would have to include an “orphan works” symbol with any public distribution, display, or performance.
- If a rights holder steps forward, the user would be obligated to pay the rights holder “reasonable compensation,” namely the amount a license would have reasonably cost. In theory, the cost of a license will be much less than monetary damages in an infringement case.
- Certain users, such as museums, libraries, and public broadcasters, would not be liable for monetary damages provided that they cease infringing uses upon demand by the copyright holder.
Response to the proposal has been mixed. The Association of Research Libraries calls it burdensome and unworkable, particularly for dealing with mass digitization. Others say the proposed legislation does not provide enough legal certainty. As any lawyer will tell you, though, legal certainty is unattainable in general and inappropriate when the law is trying to balance legitimate but opposing interests.
My thoughts are more favorable. The proposed orphan works legislation could provide a workable approach for independent authors, publishers, bloggers, and filmmakers wanting to use long-forgotten works. It would permit the use of millions of unique and insightful creations for the benefit and enjoyment of everyone.
A win-win, in my view.
What Mass Digitizers Can Do
About 100 pages of the report from the Copyright Office focus on mass digitization (e.g., Google’s scanning of countless books), covering both orphan and nonorphan works. Like the problem of orphan works, the problem of mass digitization is how to obtain permission. In this case, though, getting permission is problematic primarily because there are too many rights holders rather than because rights holders are unknown.
Under current law, scanning a copyrighted work and making it available for display on the Internet or otherwise without permission is an infringement. Why should it be different if instead of one book, it’s 20 books or 20 million? Then along came the Google case. The US District Court determined that Google’s mass digitization of copyrighted works to make them searchable and readable in “snippets” qualified as fair use.
Needless to say, this is a controversial ruling and under appeal. We are far from the end of this story. Libraries and museums favor the decision because it permits them to digitize their vast collections and make them searchable by the public. The Authors Guild is leading the legal battle against Google’s project, declaring, “The digital revolution cannot come at the cost of authors’ rights to preserve writing as a livelihood.”
Trying to strike a balance between facilitating the public benefits of mass digitization and safeguarding the rights of copyright owners, the Copyright Office report proposes a licensing system for mass digitization.
Basically, the law would authorize the Copyright Office to approve collective management organizations (CMOs) that would license works, set royalty rates, and collect and distribute royalties on copyrighted work used in mass digitization projects. (Think ASCAP for mass digitization.) Similar licensing schemes are in place in France, Germany, Canada, and the United Kingdom. The report proposes a five-year, voluntary pilot program as a first step.
The devil will be in the details, however. How do we define mass digitization? What are acceptable royalty rates? Who manages and polices these CMOs?
I fear the proposed scheme will convolute into a regulatory labyrinth, like tax and securities law, requiring a new set of lawyers and specialists to assist libraries, museums, and archivists wanting to increase access to their collections through mass digitization. I see it creating additional costs and obstacles.
What You Can Do
We are in the sausage-making part of developing legislation. The process is far from complete. The Copyright Office called for public comments on the Mass Digitization proposal through August 6, 2015. As I write, the Authors Guild, the American Library Association, and the Association of Research Libraries, among others, have promised to submit detailed comments by then, but there will be plenty of opportunities to weigh in after that.
Considering the controversy, I expect more court cases, public hearings, reports, and requests for public comments. If you have views on how publishers should or should not be able to use authors’ works without permission, and if you want the Copyright Office to take those views into account, watch the process of the legislation for future opportunities to participate and/or join one of the active organizations.
Helen Sedwick, a writer and lawyer, reports that she uses her 30 years of legal experience to show writers how to stay out of court and at their desks. Publishers Weekly listed her Self-Publisher’s Legal Handbook as one of the top five resources for independent authors, and her blog provides coaching on protecting copyrights, hiring freelancers, and spotting scams, among many other topics. To learn more: helensedwick.com.