Maybe it was the sea air. Maybe it was because I got out of town, all (well most) expenses paid. Maybe it was because the topic was NOT ebooks. In any case, the 16th Annual Berkeley Center for Law and Technology/Berkeley Technology Law Journal Symposium on Orphan Works and Mass Digitization: Obstacles & Opportunities was an engaging and successful event. For me, it was fun. There was relatively little controversy because people were not lobbying for advantage, but discussing the public policy implications of legislative and other solutions to the orphan works problem. Okay, maybe a little bit of head shaking and eye rolling, but evenhanded overall.
It was a little weird to enter the meeting room and see over 200 copyright geeks assembled. Over half were librarians, along with archivists, rights holders, users of information and copyright scholars. The presentations were compelling and provocative. I came away more convinced than ever that an orphan works legislative solution is unwarranted.
The orphan works “problem” often is not a problem at all, at least not under U.S. copyright law. Fair use allows us to use orphan works in ways that are not infringing for a host of reasons just by the very nature of the orphan work itself — obscure, not commercially viable, ripe for care and preservation. Moreover, the inability to find rights holders and pay a fee is the quintessential example of market failure, one of the reasons we have copyright exceptions in the first place.
So my policy solution to the orphan works problem is “leave well enough alone.” Those that want certainty through legislation and other fixes, reconsider the value of vagueness. With bright line solutions, we risk giving up flexibility in the law, and are likely to go down the collective licensing highway where fair users pay permission fees to licensing agents rather than to the true rights holder — who, after all, cannot be found.
David Hansen, Digital Library Fellow for Berkeley’s Digital Library Project wrote three instructive papers that prepared attendees for the symposium discussions. They are very good — read them.
The Berkeley Center of Law and Technology will provide video of the symposium in the next two weeks. Teasers — the photographers are in a dilemma, orphans are re-named hostages, and sometimes “who cares who has the rights?” is a rational question.
Director, Program on Public Access to Information
American Library Association