Is the Copyright Office a neutral party?

Recently a friend was asking me about my job title.  I was hired primarily to address copyright issues, but my title is “Director of Scholarly Communications.”  I am, in fact,  involved in lots of other issues encompassed by that broader title, but my friend made the valid point that universities are beginning to divide the copyright function out from digital publishing services and the like.  Her question got me thinking, and I concluded that I like my title precisely because it emphasizes the context of my work.  My job is not simply to know the copyright law, but to help apply it, and even work to change it, in ways that best serve the needs of scholars and teachers on my campus.  I am not hired, I don’t believe, to be neutral; I have a defined constituency, and my title is a constant reminder of that fact.

This conversation came to mind as I read two documents released by the Copyright Office in the past couple of weeks.  The constituency of the Copyright Office, presumably, is the public as a whole, and their role ought to be more neutral than mine, seeking the balance between protection and use that has always been at the core of copyright law.  In these two documents, however, the tendency to think that, as the Copyright Office, advocacy for anything that increases copyright’s strength and reach is the proper role, shows through.  The needs and voices of owners in the legacy content industries seem to get extra weight, while the needs of users, who are more diffuse and do not have as many dedicated lobbyists, get less attention.

In its brief report on “Priorities and Special Projects of the United States Copyright Office” the Office details the studies, legislation and administrative projects that it intends to work on for the next two years.  In its legislative priorities, the first three listed are “Rogue Websites,” “Illegal Streaming,” and “Public Performance Right in Sound Recordings.”  Each of these priorities is an endorsement of particular legislative action by Congress — the first clearly endorses the bill alternately called PROTECTS IP or SOPA or ePARISITES.  Indeed, each of these priorities seems to be dictated by the current lobbying activities of the entertainment industry, and each is a very much non-neutral endorsement of greater scope for and stronger enforcement of copyright protections.  There is little sign that the voices arguing that copyright already reaches too far and is over-enforced are being heard.

Other priorities do seem more neutral.  The Copyright Office wants to “continue to provide analysis and support to Congress” on orphan works, and it repeats its intention of making legislative recommendations based on the report of the Section 108 Study Group, which addressed the specific exceptions to copyright for libraries.

This last priority created a rather humorous situation for me last week when I was contacted by a member of the library press seeking information about this “new” report on section 108.  In fact, the report was issued in 2008.  Nothing has come of it in three and a half years, and, even if all of its recommendations were suddenly adopted, it would do little to improve the situation for libraries because the Study Group was unable to find agreement on the most pressing issues.  The Copyright Office does not mention the more comprehensive proposal on library exceptions made by IFLA to the World Intellectual Property Organization.

My real interest focused on the Copyright Office’s desire to do something about orphan works.  In addition to the legislative priority listed, the report promised a study document on mass digitization, which would naturally have to address orphan works, and that document was issued a few days ago.  Here we get a glimpse of how the Copyright Office plans to address the difficulties posed by orphan works.

The report makes the CO’s preferred approach very clear — “As a practical matter, the issue of orphan works cannot reasonably be divorced from the issue of licensing.”  This is an interesting statement, since the last proposal to resolve the issue that the CO nearly got Congress to adopt a few years ago did not rely on licensing, but addressed the issue by reducing the potential damages for using an orphan work after a reasonably diligent attempt to find a rights holder.  There clearly are other approaches, but the appetite  of industry lobbyists has, since the Google Books case, been whetted by the possibility of profiting from other people’s (orphaned) works, and the CO has been swept up in the licensing fever.

The report gives a detailed and very helpful discussion of the various types of licenses that could be used, but it never addresses the question that seems most pressing if orphan works are to be licensed — who is going to get paid?  If works are genuinely orphaned, there is no rights holder to pay, so orphan works licensing proposals must decide who is going to sell the licenses and where the money is to go.  Other countries have adopted licensing schemes, and often the licensing is done by the government; in the U.S., however, I think we have to assume that private collective rights organizations (who are given prominent mention in the report) would collect the money and, perhaps after some period of time, keep it.

This report is about more than orphan works, of course; it addresses the broad issue of legal concerns in mass digitization.  I was interested to see how fair use was treated, both in that broader context and in relation to orphan works.  I was disappointed in both regards.

In the general discussion of mass digitization, fair use is pretty much summarily dismissed by the Copyright Office.  It begins with the assertion that “the large scale scanning and dissemination of entire books is difficult to square with fair use,” which seems to beg the question.  The rest of the section reads like a legal brief against Google’s position on fair use in the book scanning case.  Nowhere does the report consider what difference it might make for a fair use claim if the project were wholly non-commercial, nor do they consider that fair use might be part of an overall project strategy that included other approaches, such as selected permission-seeking.  The report treats fair use as an all-or-nothing approach and dismisses it as unworkable without the nuanced consideration it demands.

More troubling is the fact that, having dismissed fair use in the broader context of mass digitization, the Copyright Office never discusses it in the more narrow field of orphan works.  With orphans, of course, fair use seems like a stronger argument, since there is no market that can be harmed by the use, especially if it is itself non-commercial.  But it seems clear that the CO is committed to creating such a market by pushing a licensing scheme, and is not willing to discuss any option that might undermine its predetermined conclusion.

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