On June 4, the Copyright Office released its Report on Orphan Works and Mass Digitization, a much-anticipated analysis of issues at the heart of the writing community’s two major copyright cases of the past decade: Authors Guild v. HathiTrust (settled in January), and the ongoing Authors Guild v. Google. The Report describes the legal difficulties faced by those seeking to use “orphan works” and/or to engage in mass digitization projects. It also provides recommendations for potential solutions.
The problem with “orphan works” arises when someone wants to make productive use of a work—republish a poem in an anthology, say, or use an old photo in a documentary—but the work’s rightsholder can’t be identified or located. Because of this, a potential user must decide either to use the work without a license (risking a copyright infringement lawsuit if the owner materializes) or to give up on the intended use altogether. This can be a major barrier to the re-use of works like photographs, which often don’t include information for identifying the rightsholder. Books may also be orphaned—where a book’s publisher, for instance, went out of business long ago—but this is less common, as books nearly always contain copyright information and identify both author and publisher.
The Report recommends legislation very similar to a bill the Senate passed in 2008, with a few additions to account for intervening developments, such as the Copyright Office roundtable talks in which the Authors Guild took part. The proposed legislation would limit liability for a user of orphan works who performs a “good faith” and “diligent” search for the copyright owner. New to this Report’s recommendations is that any new legislation should require users of orphan works to file a “Notice of Use” with the Copyright Office, in order to increase the likelihood that copyright owners will connect with users.
Significantly, the Report rejected a fair use solution recently espoused by some in the library copyright communities. Emboldened by decisions in the HathiTrust and Google cases that held the mass digitization of books from library shelves to be fair use for certain purposes, some librarians have argued that no orphan works legislation is necessary because fair use should also cover the digitization of individual orphan works. But the Copyright Office frowned on that idea, noting that “the judiciary has yet to explicitly address how to apply fair use to orphan works.” Regardless of how the case law plays out, the Report concluded, “The Office does not believe that reliance on judicial trends, which may turn at any point, is a sufficient basis to forgo a permanent legislative solution.” Fair use, however, will still be available for orphan works users in appropriate circumstances.
Mass Digitization—the wholesale scanning and digital reproduction of large collections of works—presents a unique challenge, because often it’s impracticable to negotiate with each of the copyright owners implicated in any given digitization project. On the other hand, the ad hoc approach to mass digitization favored by Google—digitize everything, justify it as a fair use, and say “so sue me”—doesn’t solve anything; it ignores authors’ rights, jeopardizes the security of their works, and allows end-users only “snippets” of many works. It’s also not a model that works for organizations that can’t afford expensive, protracted litigation.
To solve this problem, the Authors Guild has long advocated a licensing regime that would allow authors to be compensated for secure and limited uses of their work in mass digitization projects. Even Google was on board for a while. Our proposed settlement to Authors Guild v. Google contained just such a solution, and in April 2014 we testified before the House Judiciary Committee, suggesting that Congress implement a statutory licensing regime known as extended collective licensing (“ECL”), whereby users could license a limited set of out-of-print book rights, allowing for full-text display uses, not just snippets.
It appears that the Copyright Office agrees. The Report notes that “the proposed class action settlement in the Google Books litigation provides a template for an ECL system” in the context of literary works, and cites to our April 2014 Congressional testimony. Furthermore, the Report proposes an ECL-style “pilot program"—voluntary to both users and rightsholders—under which mass licenses would be issued by collective management organizations authorized by the Copyright Office. These collective management organizations would then collect and distribute royalties to rightsholders. Ultimately, an ECL framework would have to be established by Congress, and to that end the Copyright Office has requested public comments on the proposed collective licensing solutions and a pilot program.
We will be providing comments to the Copyright Office on this issue and will continue to do what we can to ensure that authors are compensated for the use of their works, that those uses are secure, and that the works themselves have every opportunity to find their widest possible audience.