The Copyright Office and the Orphan Works Report: Top Three Problems
I have been quiet on this blog for a while now. Someone recently told me at ALA Annual (in San Francisco) that I should be writing down and saving some of my “scorch the earth” type copyright analysis (read: rant?). I decided yes, you are right. And yes, I should share. So here goes – this is my first, of many, things I can’t hold back about:
The Copyright Office & Orphan Works (Part I)
The Copyright Office released its long awaited Report on Orphan Works. And I have concluded it may be time for a change in regime in that particular office. This new report is basically a magnificent time-travelling dodge, who gives us, yet again, the same tired, trite, useless, and failed legislation that we had at every other phase of orphan works discussions since 2005.
I wanted a crude phrase to summarize this travesty of a report, but I will keep it civil (at least in these opening paragraphs):
Dear Copyright Office: it’s 2015 and your failure to recognize the shifts in fair use, best practices, and the fact that the word rightsholders has absolutely no meaning in the orphan works context, makes you look incredibly senseless or susceptible (or part of) the gang of rightsholders organizations that convinced you they have some voice in this argument. [Orphan works do not have rightsholders by very definition. If there are rights-holders then it is not an orphan work. More later on this mind-bending reality.]
Let’s review the various mockeries in this “new” report:
#1 – Dear God, It’s the Poison Pill Again: Notice of Use Requirement
Much of the tired report is based on the 2008 Shawn Bentley Orphan Works Act, which passed the Senate, but failed in the House of Representatives. The version of the Shawn Bentley Act passed by the Senate in 2008 did not contain this “Notice of Use” provision. Then, Congressman Howard Berman, chairman of the House IP Subcommittee, added this “Notice of Use” provision as a “poison pill” a.k.a. “with the intent to destroy the bill” – and it worked. It was, with said poison pill, strongly opposed by the libraries and other supporters, and died in the House.
[Side Note: Berman is, in my opinion, a terrible “Hollywood Democrat,” even occasionally called “the representative from Hollywood.” In a September 2008 hearing of the House IP Subcommittee, Berman criticized the National Institutes of Health’s policy requiring NIH-sponsored research to be submitted to a database open to the public by saying that “the N in NIH shouldn’t stand for Napster.” You’re a class act, Berman. The success of the NIH’s open access repository helped lead the way for the current Open Access mandate from the government for more government research. Citizens have rights to the research they paid for in taxes, a**hat.]
Yet here we are in 2015 and see the same, tired, misguided, and frankly, uninspiring report – including, this time, the same poison “Notice of Use” provision from the start. This directs potential Orphan Works users to submit detailed information to the Copyright Office with the details of the proposed use and the nature of the search. The notice has SEVEN (!) requirements:
1) type of work used; 2) description of the work; 3) summary of the qualifying search conducted; 4) any other identifying indicia available to the user; 5) source of the work (such as the library or website where the work was located or publication where the work originally appeared); 6) certification that the user performed a qualifying search; and 7) name of the user and description of how the work will be used.
To say that this is burdensome is clearly an understatement. Again, we see that the Copyright Office, filled to the brim with what appears to be an anti-library cadre, has no idea about the time and resources necessary to outline each potential orphan work use. Additionally, since this was already used as a poison pill – this draft is as useless as a screen door on a submarine.
The money, time, and documentation necessary to notify the world of an orphan work use is unfeasible, particularly if a user was contemplating large or masss digitization, in which the goal is not a single particular use, but freeing the culture, scholarship, and information to the world!
The Copyright Office itself acknowledges that “filing a Notice of Use for each use of an orphan work may place a significant burden on users […].” For real? Then why include the poison pill provision at all? Is the Copyright Office aware that libraries are not exactly rolling in cash and staff surpluses? No. They know. They are biased against us. I am fairly sure of it.
And, on top of all of that – the real secret is that the Copyright Office does not have the staff, time, technology, or resources to even support the effort that they have proposed in this Notice of Use requirement. So this thing is failed right from the start. Well done.
#2 Time Traveling Suckage, Part II: Good Faith Diligent Search
Again, the Orphan Works Frankenstein’s Monster of 2008 (er, the Shawn Bentley Orphan Works Act – “Fire, Bad”!) included a requirement for limited remedies when a user of an orphan work has conducted a diligent, good faith search for a rights holder and reasonable compensation for rights holders with a special provision for noncommercial actors (including libraries) engaged in noncommercial use of orphan works. Sounds great, right? NO.
The definition of a good faith diligent search has many required elements that the world already found troubling back in 2008! The search requirements include, at a minimum, a search of Copyright Office records on the Internet, sources containing authorship and ownership information, technology tools (what? “Technology tools?” What is that?), databases, and even Copyright Office records. Yes, that’s right, the very same Copyright Office records that are not available on the Internet.
A good faith diligent search “shall include any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.”
Again, we are fighting the same fight here from years ago. I feel like Doc Brown trying to warn Marty McFly – it doesn’t work this way folks. The world hated this overly burdensome definition then and we reject it now as well. What they have outlined is extremely time consuming and resource intensive searches that half the libraries of the world can’t perform, pay for, or, in the case of the mysterious Copyright Office records not available to the public – can’t even find! Argh! (You understand my level of frustration now, Marty McFly?)
I must quote from my friend and colleague Emily Feltran at the American Association of Law Libraries who said recently:
Institutions working with orphan works will have differing resources that they can employ to undertake searches and, particularly in the area of mass digitization projects, mandatory steps could lead to a cost prohibitive per-work analysis and documentation process. Like fair use, use of orphan works requires flexibility.
Well said Emily. Good faith, diligent searching should be flexible. Librarians are Information Professionals. And we are the best dammed searchers on the planet. Let us determine what’s necessary and go forth. Trust us.
Again, my assertion here is that the Copyright Office has drank the rightsholder Kool-Aid, and does not trust librarians to act in good faith. They are biased and anti-library.
#3 Fair Use. Good. Wait – It’s Bad? It’s a trap!
This part had me both angry and confused. But mostly angry.
While the draft does include a nice “Fair Use Savings Clause”
PRESERVATION OF OTHER RIGHTS, LIMITATIONS, AND DEFENSES— This section does not affect any right or any limitation or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the use contemplated by the infringer, that provision applies instead of this section.
It’s a trap! (tip of the hat to Admiral Akbar)
The Copyright Office’s Report on Orphan Works is actually a backhanded attack on fair use. And, yet again, shows its complete bias against the library community by taking a few shots at any orphan works best practices which emerged from our communities.
Let me take this one by one here:
Fair Use
Yes, the fair use savings clause is good. We can use fair use for some orphan works, and transformative uses have become critical to our fair use inquiry. And compared to legislation, it’s here, now. We don’t have to wait for our (least productive) Congress (since 1942) to try and pass this law. As I stated at the Orphan Works Roundtables held at the Library of Congress last year:
What are the chances that legislation will be passed that satisfies everyone at this table? Zero…..But what we have now is we have best practices….and we have fair use now. It’s not perfect, but it’s good enough. And I think that we avoid this kind of vicious cycle that we’ve been going through over the last seven or eight years with regards to orphan works. I mean, let’s rely on what we have now. Codes of best practices are useful as a tool for education, risk mitigation, indicators of what’s reasonable, and make aspirational goals for a particular profession or job function.
But what does the Report on Orphan Works from the Copyright Office say about fair use? From the Report:
The judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change . . . 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.
Holy Bulls**t, Batman!
You don’t have to have a perfect on-point orphan works case to use the fair use statute! That’s the whole point – it’s a flexible law which can adapt to various new and undefined uses. This above statement makes the Copyright Office look like a group of first year law students – “But there’s no exact case on point with the exact same fact pattern – Wah!” Listen up you 1L’s – the common law allows you to rely on previous caselaw, even in different fact patterns! Wow! You can do some legal analysis and make significant correlations, and even cite and use the fair use statute! Amazing!
As far as that there’s this idea from the Copyright Office that the record is unclear regarding fair use, I say: balderdash! (Quoting from Kenny Crews “Fair Use Week” blog entry). We’ve had about 30 years of fair-use litigation and a decade or more of transformative fair-use litigation. Since the 2 Live Crew case the law has come down with a clear set of decisions and guidelines – Second Circuit, Ninth Circuit, and others – that says what transformative fair use is and is not. And we have a righteous common law record which is grounded by that Supreme Court decision. This is not a “judicial trend” – it’s a recognized record of common law which can be relied upon to make copyright risk-mitigating decisions. An established legal record of jurisprudence. Don’t get me started on how our common law system gives us certainty, uniformity, and predictability in law! It does. So don’t go around saying fair use is a “judicial trend” – it sounds silly.
Best Practices
Again, the Copyright Office takes a shot at any role for community best practices, especially from libraries and archives. They can’t help but show their complete bias in this regard. Their statements sound exactly like the whining I hear about best practices from every rightsholder organization at every copyright, fair use, libraries, first sale – you name it – panel or roundtable. It’s like they are even mimicking their tone:
Orphan Works best practices [i.e. the Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives] fail to “provide guidance on how a library should go about determining if a work is orphaned in the first place, beyond the lack of commercial exploitation by the owners and the likelihood that the owners could not be located….” And they “often are arrived at absent consultation with authors and other copyright owners, and therefore run the risk of being more of an aspirational document—what a community believes fair use ought to be – than a descriptive one.”
Again: Bulls**t.
Our community – libraries, archives, researchers, scholars, etc. – has two Orphan Works best practices documents which users have been relying on for years. There has been no litigation. No threats of suits. Just guidance, understanding, and uses. We have done what the copyright office wish they have done – created a document that actually helps users with the orphan works problem. The Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives are fine documents attempting to solve the problems we are facing.
[At least we aren’t recommending stale, failure-bound legislation from 2008, with no hope of ever passing through Congress.]
Codes of best practices have become common tools over the last decade to mitigate risk for a host of civil and criminal wrongs, including copyright infringement. The term has not been defined by case, statute, or regulation very well, but has its origins in business management. However, there are some elements of them found in the law. The Uniform Commercial Code, for example, is an attempt to codify industry best practices with regard to commercial interactions.
These codes are usually compiled from actions, thoughts, practices, and values of a particular community’s mission. They are not law, but have the effect of defining what is “reasonable,” so that if litigation does arise, the courts can look at these best practices a form of good faith effort, or to alleviate some of the brunt of liability. These codes of best practice are useful as tool of education, risk mitigation, indicators of what is reasonable, and make great aspirational goals for a particular profession or work function. And, as a result of the rapid movement into digital age, these best practices frequently have to do with new technology. The Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives aren’t just two statements; they are carefully crafted. You have a firm statement, then you have limiting statements underneath, and then you have guidelines and stories about how the community is using them. They are helping.
And that last statement, that the Copyright Office feels these best practices are “often are arrived at absent consultation with authors and other copyright owners.” Hey Copyright Office – the orphan works don’t have any “authors and other copyright owners” – that’s the whole point. They are orphans. Why the heck would we consult with them? They don’t own the rights, and if they did, it wouldn’t be an orphan work!
Let me summarize with a quote from the Roundtable again.. And I said:
And as for the remedies that are offered to folks, you know, the only remedies that a creator has is bringing something to court….[I]f they wanted to bring it to court they would have to register it, right? That’s the prerequisite for a federal district court complaint that you would have to register the work [with the Copyright Office]. So then it’s no longer an orphan work.
**Problem solved!**
Final Thoughts
I have been rough. But we need to get real. Copyright Office: You failed. This Orphan Works Report is a Frankenstein’s Monster from 2008, emerging from a stinking time-traveling machine that is ripe with failure. Thanks, but no thanks. And I can’t even get into the whole collective licensing nightmare you also suggested. That’s for another post.
Also, Copyright Office, please stop whining about being inside the Library of Congress and get to some real work that might make a difference. (See Kevin Smith’s excellent article: Does the Copyright Office Belong in a Library?) And please stop kowtowing to the rightsholder organizations – you represent the people, not the industries. I see your bias, and I am not happy, nor is library community as a whole.
Again, about leaving the Library of Congress to become your own special snowflake (quasi-independent, Congressional super force)? I say this: You are right where you rightfully belong: working for librarians. Get used to it. I plan on fanning the flames of my colleagues in archives and libraries to get you to comply with your role and mission. You work for the Library of Congress, with, potentially, a new Librarian of Congress. You answer to librarians. And after all – we are on the good side! We are the defenders of the public access, privacy, and the right to the free flow of information. Why not lay down your arms and join our ranks? (Is there a librarian among you in any of the senior positions at all?)
Lastly, stop with this Frankenstein’s Monster 2008 Orphan Work report, stop begrudging libraries, best practices, and fair use, etc. You might want to start by scanning in the “Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.” Seems like a quick win for everyone there, no?
