A non-transformative argument for orphan works

Guest Post by Eric Harbeson, University of Colorado, Boulder

In the last decade, policymakers and advocates have been debating how best to solve the problem of “orphan works”—those works that are, or are presumed to be, under copyright, yet whose rightful owner cannot be identified or found. That orphan works exist (and all the evidence points to their existing in vast quantities) is a tragic flaw in our copyright system. Copyright provides an economic benefit to authors, as an incentive to invest the resources into creation. It also comes at a cost: early writings from Jefferson and Madison indicate the caution with which they and others recommended granting of monopoly rights; they generally abhorred such a thing, but recognized that it was the best option. And it worked very well for a long time. But copyright laws have expanded and evolved, adding automatic assignment of copyright, greatly expanding terms, and greatly devalued registration, and so we are left with an increasingly frequent condition: some would make use of copyrighted works, but no one is available to authorize and license the use.

Many solutions have been proposed, and in one case even come up for a vote in Congress (which failed). Of all of the solutions, I think the most elegant is fair use. But I think for fair use to work well as an orphan works solution, we may need to expand our understanding of the doctrine.

The public dialogue over fair use in the last several years has focused very heavily on the first evaluative factor—that of the purpose and character of the use—and specifically on whether the use is “transformative.” And for good reason. Beginning with a seminal work on the subject by judge Pierre Leval, followed shortly after by the Supreme Court’s landmark decision in Campbell v. Acuff Rose Music, Courts and commentators have placed a high importance on whether the use made of a copyrighted work recasts that work in a way that alters it, to quote the Campbell decision, “with new expression, meaning, or message.” There have been interesting efforts to codify how use of orphan works by libraries and archives constitutes fair use on the grounds that it is transformative. I would like to suggest, though, that the focus on transformativeness may miss the point entirely, because it relies on the use that is made, and not on the copyrighted work. To be orphaned is not, after all, a property of the use, but a property of the work. Just as a use is transformative whether or not the work is an orphan, shouldn’t likewise a general theory for orphan works focus not on how the work is being used, but on the work itself?

Cassette tapes.

Photo credit: Pascal Terjan

The second fair use factor is where the courts are invited to consider the “nature of the copyrighted work.” Though courts have rarely spent more than a short paragraph applying the second factor (essentially boiling down to the question, “is the work primarily factual or creative?” and maybe, “is the work published?”), there is room for a much more complex analysis. Associate Register of Copyrights Rob Kasunic discusses this in detail in his excellent article, “Is That All There Is? Reflections on the Second Fair Use Factor” (31 Columbia Journal of Law and the Arts, 529). In fact, Kasunic’s analysis opens the second factor up so much, that the simplification by the courts to this point almost wants to ridicule itself. Why should we think we can apply such a basic question to all copyrighted works and hope for anything remotely helpful as a result? Inspired by Kasunic’s article, I’d like to suggest that it is here, in the second factor, that an orphan works solution might live.

If we drill down into the “nature of the copyrighted work,” there are many potential questions that might help a court resolve fair use questions for orphan works without having to make the transformative question determinative. Questions a court could ask of the nature of the work might include:

  • Was the copyright bargain a factor in the creation of the work in the first place? It probably would have been for a work of art or book, but almost certainly not for a letter, or other bit of ephemera.
  • Has the expected economic benefit from the work been achieved? A commercial work that has followed the normal arc of commercial viability, only to lie dormant for fifty years, probably has achieved the economic success it expected, probably contributing to the absence of the right holder.
  • Has the right holder made a reasonable effort to protect the work? A work whose commercial life has ended, but which the right holder still makes an effort to license and be found, would clearly point away from fair use under this factor (as well as in the fourth factor, the effect on the market). But abandonment of a work, like abandonment of a child, must push some caretaking responsibility to the public.

The beauty of using fair use to answer the orphan works question is that, when done correctly, it should solve the problem completely, to the satisfaction of both the public good and the right holder interests, and without the need for legislation. Right holder advocates have argued strenuously against cumbersome registration requirements, loss of rights, and loss of revenue that might come with a legislative action, and viewing this through the lens of fair use would obviate all those concerns. A right holder who comes forward after discovering her work could easily re-establish her active custodial interest in the work, possibly at the time she registers the work (required for any legal action). At the same time, a fair use solution would allow users (and especially libraries and archives) to pursue many valuable projects to benefit the public, without the risk of having to pay gargantuan statutory damages to an opportunistic plaintiff, and very likely without anyone ever feeling harmed. Copyright, after all, was never intended as a lottery ticket for a windfall in legal fees, nor should it ever be used as such.

In many cases, uses of orphan works are unquestionably transformative. HathiTrust and Google Books are two examples of the complete recasting that the courts have envisioned. However, the opinion by Judge Leval in the Google Books case makes me worry that the courts may set a higher bar for transformativeness than may previously have been thought. Given that, I think it is worthwhile for us to rethink whether transformativeness is the sine qua non of fair use.

About Carrie Russell

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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