[A2k] Discussion on Orphan Works and Mass Digitization at US Copyright Office, March 10-11, 2014

Claire Cassedy claire.cassedy at keionline.org
Mon Mar 17 10:52:35 PDT 2014


Discussion on Orphan Works and Mass Digitization at US Copyright Office,
March 10-11, 2014

The US Copyright Office held a two day roundtable event on the topic,
"Orphan Works and Mass Digitization." The two days were split into ten
sessions, with extensive panels convened for each roundtable discussion.
The meetings were held in the Montpelier Room at the Madison building of
the Library of Congress, with the exception of the afternoon panels on the
second day, which was held downstairs in the hearing room of the Copyright
Office. Both days of the event were very well attended, and in fact, when
the meeting was moved to the hearing room, the room was over capacity and
they were not able to accommodate all who wanted to attend.

Karyn Temple-Claggett, Associate Register of Copyrights and Director of
Policy & International Affairs at the Copyright Office, chaired the event
and facilitated an in-depth and even handed discussion of the topics in
each panel. There were sixteen panelists at the table for every session
over the two days, and each panel had a broad range of representatives from
all sides of the orphan works issue. For a complete list of participants,
please see the attached file.

The first session of the event debated the need for legislation to address
the orphan works issue or whether recent court decisions and policies would
suffice. The participants on this panel ranged from representatives of
libraries, publishers, and writers to illustrators, independent music, and
Wikimedia. James Love represented KEI in the discussion.

Although there was a wide spectrum of opinions on whether legislation was
needed to deal with orphan works and their use, a unified message was heard
from the library community. Across the board, those associated with
libraries emphasized that legislation might not be the best solution at
this juncture and that fair use was the best way to continue forward.

On the panel, KEI said that legislation along the lines of the 2006 bill,
which limited remedies for infringement, would be useful, but of course,
people could imagine legislative outcomes that were harmful, as regards
access to works, and that everyone's positions on legislation would depend
upon what they thought the Congress would actually do. KEI was opposed, for
example, to extended licensing systems that require the public to pay money
to collection societies, when the author or right holder of work could not
be identified, and would not receive the money. Orphan works legislation
should be designed to expand access to the permitted uses of orphan works.
Love said that the issues were different for different types of works and
different uses of works --music, photographs, text intended for
commercialization, and text never intended to be commercially exploited,
all might have different solutions. KEI discussed the DMCA approach, where
the Library of Congress can create exceptions through rulemaking, driven by
proposals that address specific and sometimes narrowed needs, might be a
good model for moving forward on Orphan Works legislation, if the approach
eliminated the flawed 3-year sunset provision for exceptions in the DMCA,
and if the legislation had a good terms of reference.

KEI also brought up the TPP, ACTA and TTIP negotiations, and said that
provisions in trade agreements that lock-in long copyright terms, and new
TRIPS plus norms for damages and injunctions, will undermine progress on
efforts to expand access orphan works. KEI said the Library of Congress
should oppose those provisions in the inter-agency coordination reviews of
these secret trade negotiations.

On the issue of formalities, KEI said that there was more flexibility than
some may think. The obligations regard formalities in the Berne Convention
do not apply to related rights, such as sound recordings, and the WTO would
allow formalities more broadly after 50 years from publication.

Session 2: Defining a good faith "reasonably diligent search" standard

The next panel of the day centered on defining what would constitute a
reasonably diligent search, either under best practices in conjunction with
fair use or in possible future legislation on orphan works. Outlooks on
search standards ranged from embracing free market solutions in the form of
companies that might arise to carry out searches to leaving it to the
communities of different types of works (print, photography, film, music)
to determine best practices for their discipline.

Jack Lerner, of the USC Intellectual Property and Technology Law Clinic,
said that there hasn't been an issue with the current best practices.
Lerner also warned against intervening in the market stating that, "we
don't want to end up with the photocopy guidelines from the 1970s...that
don't get used."

The moderator from the Copyright Office raised the example of the EU
directive on orphan works, explaining that under the directive, once a
search is done and is unsuccessful, a record is made and can be referenced
by those seeking to use the same work. Although some advocated the
registration of orphan works searches, the question also arose as to who
would manage the registry and how it would work. However, as David Hansen
noted in the panel and then also tweeted, "Lots of praise of EU directive
approach to search. No mention that many EU libraries find the OW directive
virtually useless #orphanworks" (@DigLibCopyright)

Session 3: The role of private and public registries

This roundtable looked at what could be done to the current system to help
improve the orphan works situation. The overall consensus of the discussion
that whatever form a registry took, and whether for the creator or user,
any registry option had to be simple, searchable, and interoperable with a
variety of applications. As to whether the registry system should be a
public or private entity, concerns were raised as to the validity of data
in private registries and facilitating sharing that information with the
public but it was noted that private registries might be able to nimbly
adapt to market and industry changes.

Session 4: The types of works subject to any orphan works legislation,
including issues specifically related to photographs

Considering the unique challenges posed by orphaned photographs in the
internet-era, the Copyright Office opened this panel by asking whether
photos should be excluded in a possible orphan works legislation or if
works of all mediums should be included. Although coming from a variety of
subject areas and motivations, most panelists felt that if any orphan works
legislation should arise, it should be all encompassing. Those that
represented libraries and archives highlighted that their organizations do
not make use of works as individual items, but rather as collections, and
as such it would render them incomplete and piecemeal to separate out
photographs from other works.

Bruce Lehman, representing the American Society of Medical Illustrators,
stated however, that medical illustrations should be excluded and more
generally that all illustrations should be excluded since the purpose of
the use is important and in this case it is always for commercial use.

The panelists stressed that if legislation were to be enacted it would need
to strike a delicate balance, being both simple and straightforward as well
as taking into consideration all types of works. Throughout the discussion
though, representatives from the libraries and archives continued to
reassert that fair use was the proper way to address orphan works at this

Session 5: Types of users and uses subject to any orphan works legislation

The final panel of the first day of the roundtable focused a great deal on
the types of uses that would be subject to any potential orphan works
legislation. Manon Ress represented KEI in the discussion.

Although most of the participants agreed that separating out commercial
versus non-commercial in any potential legislation would be important, the
problem then arose as to how one would define commercial use. Drawing a
distinction between commercial and non-commercial could be difficult.
Krista Cox of the Association for Research Libraries stated (in reference
to commercial use considerations), "any narrow carveouts could reduce the
value of the legislation."

KEI highlighted that the critical thing for any legislation is keeping the
focus on access, "It's important to find a path to access to orphan works
that reconciles both commercial and non-commercial uses."

Session 6: Remedies and procedures regarding orphan use

Day 2 of the Orphan Works and Mass Digitization Roundtables began with a
discussion of possible remedies for orphan works offenses. James Love
represented KEI at the table. In examining a reasonable compensation model,
participants considered possibilities for registration as well. Elizabeth
Townsend Gard of Tulane University outlined three key components that could
help address the orphan works problem. She suggested that registration by
the creators should be a key component, as well as recording searches by
those seeking to use orphan works, and then from the point of registering a
work, a fixed period of copyright protection from a record of a search.

KEI pointed out that in terms of international conventions in this area,
the Berne Convention says nothing about remedies but rather trade
agreements are where you run into issues on standards and norms on
injunctions. Love stated that,

"ACTA and the TPP are changing international norms on damages in an
aggressive way. There are major challenges in dealing with damages and
formalities not because of international conventions but because of
secretive trade agreements. You should encourage the USTR to open up
negotiations that you can see how they are undermining what you're trying
to do here at the Copyright Office."

KEI suggested specific language on damages, suggestion that damages take
into account whether or not the work was ever intended to be exploited
commercially, and the period of time since it was ever exploited

Later in the session, Michael Weinberg of Public Knowledge reminded the
group that it is important to focus on what the remedy would be seeking to
address and warned that, "If there are problems with the registration
system, creating punishing damages are not the way to deal with them."

Session 7: Mass Digitization, generally

The session on mass digitization was a relatively contentious discussion
with some debate on fair use arising between panelists. In beginning the
discussion, Michael Carroll of American University and Creative Commons
defined digitization as scanning a work, literally format shifting, which
is fair use. Jan Constantine of the Author's Guild attacked that
definition, saying that format shifting constituted infringement and in
addressing those who are not libraries and digitize works, "just you wait
for the next lawsuit."

Moving on from the disagreement over fair use, Corynne McSherry of the
Electronic Frontier Foundation highlighted that the works in question were
previously out of print or orphaned and that there was presumably no
commercial value before the organization seeking to use the work sought its
owner. She expanded on the comment acknowledging that perhaps the new use
creates a commercial opportunity, but that there was not prior commercial
value for these works.

Jerker Ryden, representing the National Library of Sweden, spoke on the EU
orphan works directive. He reminded the participants that in determining
the directive that many options were possible (including extended
licensing) and that they had chosen the option that encouraged the most
access. Access in particular was important for the EU's policies as they
sought to enable improved cross-border access to works.

Session 8 & 9: Extended Collective Licensing and Mass Digitization;
Structure and mechanics of a possible extended collective licensing system
in the US

Both sessions 8 and 9 of the roundtables addressed the possibility of
extended collective licensing and what form licensing could take in the US
system. Panelist after panelist is the sessions expressed doubt over the
implementation of an extended collective licensing (ECL) scheme in the US.
Jim Mahoney stated that ECLs forced down prices, Brandon Butler said that
ECLs were slow to adapt to market changes and that they were damaging to
fair use, and Casey Rae referred to ECLs as 'putting the cart before the
horse.' Others like Lauri Rechardt said that ECL wasn't needed as voluntary
licensing was already sufficient and Ben Sheffner said that any collective
licensing system needs to address specific markets and that a mandatory
licensing scheme would and should be of last resort.

In considering the structure of any possible ECL in the US, Lehman spoke in
support, but noted that it would have to be formally established by law. He
said that we have long experience with collective licensing in the US but
that for the most part it has been a system created on an ad hoc basis. A
mandatory licensing system would be new ground for the US and if it were to
be instituted, the critical point would be to ensure that the rights
holders receive the money from the collective.

Colin Rushing of the SoundExchange said that the Copyright Office would
need to ensure to engage all stakeholders in the process, and that the key
principles of the licensing body would have to be transparency, efficiency,
and accuracy.

[1] http://keionline.org/sites/default/files/USCO.March 10-11,
2014.2014.Orphan Works Roundtables FINAL.pdf

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