“Safe zone” established during orphan works roundtable

It’s become a tradition for rights holders, creators and cultural institutions such as libraries, archives and museums, to gather to debate about orphan works legislation. For those not in the know, back in 2006, the Copyright Office published a report (pdf) on works that are thought to be “orphans.” These are works still protected by copyright whose rights holder or author is not known or cannot be found. Users of these works—libraries, educators, private companies, other creators, the general public—want to get permission to use these works in ways that go beyond fair use or other user exceptions.

Libraries want to digitize unique collections and make them available to the public, but rights holders cannot be found. Documentary filmmakers want to use music in their films, but the record companies that held the copyright have gone out of business and no one knows who might hold the copyright. A teenager investigating her family tree wants to post some family photos on Facebook, but no one knows who took the original photograph. People choose to forego the use of the work for fear of infringement thinking that the rights holder might show up some day and sue. Thus library collections are not preserved in digital formats, unique historical collections remain hidden in boxes in the back rooms of archives, and creators who could use the works to create new works or new businesses stop in their tracks. The Copyright Office believed that this was “not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work.”

Unfortunately since 2006, rights holders, creators and users of content have been unable to negotiate a copyright legislation that would allow the use of these orphan works in certain situations. Legislation was crafted and considered over two Congresses but the stakeholders could not come to anything even looking like consensus. After no progress had been made, Congress got tired of talking about it and there were ongoing court cases dealing with orphan works.

Time marched on. The Google Book Settlement was thrown out of court leading to a new court case where Google argued that its scanning of books—many of them orphans—to improve their search engine was a transformative fair use. The court agreed. HathiTrust won its fair use case against the Authors Guild for its scanning and preserving works. Again, many of these works were orphan works. Both of these cases are being appealed, but did these lower court rulings and other court decisions indicate that existing fair use law (Section 107) already address the orphan works problem? Was separate orphan works legislation therefore unnecessary? No, said the Copyright Office, and the majority of rights holders and creators.

This week, the usual suspects (including the American Library Association) have come back the drawing board, to air opinions and concerns. Would orphan works roundtable redux be just another badly made Hollywood sequel? Not quite.

During Tuesday’s U.S. Copyright Office roundtable on orphan works, a representative from an author’s association threatened to sue libraries for digitizing collections (not posting the works online but just for digitizing the collection, perhaps for preservation purposes).

Wait a minute.

Let me check my notes to make sure I’ve got this right…the representative said, “Just wait for the next lawsuit. We are on you.” For those not familiar with these roundtable sessions, people do express their strong opinions (many opinions that are totally understandable), but in my experience, announcing one’s plan to sue another person or group, out loud, in front of everyone in the room, this was a first. Attendees, who had just started to nod off, took notice. The response was uncomfortable laughter, perhaps this was something just said in the heat of the moment, or was meant to be funny. (See me giving the benefit of the doubt.)

But later, the author’s representative said it again. “I warn you, if you do it (digitization), I’m going to take you to court.” Well, so much for seeking common ground. It looks like—yet again—that parties cannot come to agreement on orphan works.

I have to say I felt particularly offended. If anything, we librarians are law-abiding to a fault. I can say this with some certainty because I have worked with librarians —public, school, academic —on this orphan works problem since 2005, maybe earlier.

So I felt compelled to go to the microphone, and suggest that threatening libraries with lawsuits was not a good idea if we want to work together on this issue, the representative said—and I am not kidding—“It’s worked before.”

Lesson: these long and exhausting meetings can occasionally be kind of interesting. Sadly, they do not engender goodwill as we seem to drift farther and farther apart from reaching agreement, or at least a little truce.

I must add that later in the day, the authors’ group representative apologized to me, and I believe she was sincere. I accepted her apology.

Later the Copyright Office conveners had to announce a “safe zone” for the rest of the day. Like rowdy school children, we were asked to behave.

Moving forward, the U.S. Copyright Office is now accepting public comments on orphan works legislation. The window for public comments closes April 14, 2014.

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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