In June of this year, the U.S. Copyright Office solicited public comments on a massive 234-page report and legislative proposal dealing with one of copyright’s central problems—orphan works. But with the public comment period set to close on October 9, librarians and archivists—groups that once supported orphan works legislation—are lining up against the plan.
Simply explained, orphan works are works for which copyright status is undetermined, usually because a legal copyright owner is not identifiable or locatable; the works thus go unused, for fear that if they were used, an owner might later surface and sue. It’s a modern problem, tracing its roots to 1976, when Congress eliminated the requirement that owners register and renew their copyrights, and it has been exacerbated by the lengthy extension of copyright terms. Librarians and archivists today say they are sitting on millions of works that are stuck in cultural limbo because their copyright status cannot be determined, including books, films, artwork, photographs, and other ephemera.
For the better part of a decade, the Copyright Office has tried without success to craft some kind of a solution. In 2008, the Shawn Bentley Orphan Works Act actually passed in the House of Representatives, before dying in the Senate. Under the broad strokes of that bill, if a user conducted “a reasonably diligent” search for a copyright owner, infringement penalties would be limited should the legal copyright owner eventually emerge and sue.
The Copyright Office’s latest proposal is based on that same failed bill, but with a few stunning additions. For example, the current proposal would not only require users of orphan works to perform (and document) diligent searches but would also require each of them to file a notice of use with the Copyright Office. “Think about that for a second,” wrote TechDirt’s Mike Masnick, pointing out that the orphan works problem was created by the elimination of copyright holders’ need to register their works in the first place. “The Copyright Office is now recommending, instead, that the user has to register.”
The Copyright Office is also seeking to pilot a five-year “extended collective license” (ECL) program for mass digitization projects. In other words, the Copyright Office is proposing to collect license fees from, say, a library scanning its special collections, and to hold those fees on behalf of unknown rights holders who, in all likelihood, will never surface to collect them.
“The ECL proposal for mass digitization is really perverse,” says Brandon Butler, practitioner in residence at the American University Washington College of Law, and a participant in the Copyright Office’s 2014 roundtable on orphan works. “First, almost no one asked for it, including many copyright holder groups, so why is it in there? Second, we’ve never had anything like this in this country, so there is no one with experience running or working with such a licensing system.”
Butler also points out the significant risk in administering “massive licenses” on behalf of absent rights holders. “Inevitably, the funds will be mismanaged, distributed inequitably, absorbed by the collector in the form of inflated operating costs, sought inappropriately by some, and so on,” he says.
In a public comment, the Society of American Archivists called the Copyright Office’s ECL proposal “unhelpful, irrelevant, unduly burdensome, and a disservice to the communities that archives serve.” The Library Copyright Alliance (LCA), a coalition of the nation’s major library associations, has called the proposal “deeply flawed.” But more fundamentally, the LCA is no longer supporting orphan works legislation, citing a fair use landscape that has changed dramatically since 2008, including significant legal decisions favoring efforts like Google’s library-scanning program.
Notably, the Copyright Office rejects the library community’s contention that fair use jurisprudence might now offer sufficient cover for users to engage with orphan works. “But libraries, by and large, have come to believe that most of the uses of orphan works that they care about will be fair use,” Butler says. “So all the barriers and formalities the Copyright Office wants to impose simply don’t make sense anymore.”
Beyond the immediate fate of orphan works, the Copyright Office’s plan raises questions about the future of copyright more broadly, especially as talk of reform heats up. As the old saying goes, if you find yourself in a hole, stop digging. But rather than address the orphan works problem at its source—the lack of any kind of copyright registration or renewal—the Copyright Office’s plan is to keep digging, but with a complex scheme on the back end that might sift a few gems from an ever growing pile.
“Orphan works are the result of weak registration requirements and absurdly long terms,” Butler says. “But now, to protect absent owners, libraries and others are supposed to conduct burdensome searches and register all their uses?” At the very least, he adds, it shows “to whom the Copyright Office listens, and who they think should bear the burdens of any policy change.”
