The Library Copyright Alliance (LCA), of which ALA is a member, filed comments on the U.S. Copyright Office’s proposal for a five-year pilot to test the efficacy of an extended collective licensing (ECL) model for the non-profit, educational use of protected works in mass digitization collections. The U.S. Copyright Office contemplates that full text access of digitized content eventually will be desired, and an ECL would be a good mechanism to monetize that access.
ECL would provide a sort of blanket license for such access to mass collections, removing the burden for users to locate rights holders themselves to negotiate a license fee for millions of works. Fees would be collected, perhaps on an annual basis or through a subscription model, for all uses. A portion of the fees collected would then be distributed to rights holders. Fees would also be collected for uses of orphan works whose rights holders cannot be found. This money would be saved and paid to the appropriate rights holders if ever found. The LCA opposes the ECL pilot for a number of reasons. A blanket license system would weaken fair use and lead risk averse users to believe that if a license can be paid, it should be paid regardless of the circumstances of the use. There are no funds to develop and manage a complicated rights registry. LCA also opposes the collection of fees that may never be distributed to lawful rights holders, since these rights holders cannot be located. Moreover, there is no evidence that anyone is clamoring for such a licensing system.
During the March 2014 roundtables on orphan works and mass digitization held by the Copyright Office, only one stakeholder was interested in extended licensing. The Authors Guild supports ECL because it reflects one aspect of the now defunct Google Book Settlement—the Rights Registry, which would have funneled subscription fees for full text access to rights holders. Unlike the Rights Registry, however, the ECL pilot has none of the start-up funding costs that Google would have paid if the class action book settlement had been approved. It also seems highly unlikely that Congress will draft legislation to enable a five-year pilot for extended collective licensing for which most stakeholders are not interested. Based on the comments received, the Copyright Office may call for additional comments before crafting a formal legislative proposal for Congress’s consideration.