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

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Wed Mar 19 02:05:14 PDT 2014

Was there any discussion about how to figure out what "normal
exploitation"[0] means today? Any studies on this? In particular on self
publishing authors (aka "bloggers").

Also, was the (related) problem of looking for your car keys under the
lamp post[1] addressed? Any comments on that readers in Utah[2] could
help out?


[0] http://en.wikipedia.org/wiki/Berne_three-step_test
[1]  http://en.wikipedia.org/wiki/Streetlight_effect
[2] http://en.wikipedia.org/wiki/Utah_Data_Center

On 03/17/2014 06:52 PM, Claire Cassedy wrote:
> http://keionline.org/node/1978
> 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
> point.
> 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
> commercially.
> 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.
> Links:
> [1] http://keionline.org/sites/default/files/USCO.March 10-11,
> 2014.2014.Orphan Works Roundtables FINAL.pdf
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