All of the above are recurrent themes in copyright and scholarly communications these days, but a recent publication from the Society of American Archivists has put a little different spin, I think, on an ongoing conversation.
The SAA released a revised version of their Statement of Best Practices on Orphan Works on June 17. In the statement about the purpose of the report, the SAA makes specific reference to the two bills that were considered by Congress in 2008 as attempts to solve the orphan works problem (I blogged about those bills here and here). The revised statement of best practices is an explicit attempt to define a term that was used in those bills — a “reasonably diligent search” for a copyright holder. It would be only after such a search that a remission of the damages for a user of an orphan work would be available under these bills, and the SAA is trying to suggests standards and practices that define what is reasonable and diligent in the real world of archival materials.
It is important to realize that there are two different approaches to using orphan works. The bills proposed in Congress take a remedies-based approach, offering a substantial reduction of the possible penalties for users of orphan works if they first undertake a reasonably diligent search and, subsequently, a rights holder surfaces and demands compensation. The SAA statement of best practices is directly related to this approach and undertakes to define the steps necessary if such a search requirement is enacted. But the statement of best practices also recognizes another option, reliance on fair use. The statement says “Fair use may be a better rationale for creating a copy or publishing a copy of a document,” but it does not make an explicit connection between fair use and the best practices outlined in the remainder of the statement.
Fair use is an exception to copyright’s monopoly that already exists and is currently available to potential users of orphan works. The value of the “reasonably diligent search” in the fair use context is that it would have, I believe, a profound effect on the fourth fair use factor, the impact on potential markets for the work. If a search such as is suggested in the SAA statement is carried out and no rights holder can be located, that would go a long way toward showing that no market is being harmed by the use (especially if the use itself is educational and non-profit). In this situation, it is hard to imagine a court actually rejecting a fair use defense, and even if such a defense did fail, archivists and other employees of non-profit institutions could still fall back on the partial remission of damages that is provided in section 504(c)(2) of the Copyright Act. As the SAA notes, a reasonable belief in fair use, even when a court disagrees in the end, “is sufficient to protect the archivist from statutory damages.” Such protection is not as complete as would be provided by an orphan works bill, but it is is nonetheless substantial. In the end, it really might make more sense for educational users to rely on fair use when contemplating a use of an orphan work, after employing some or all of the strategies in the SAA statement of best practices to try and find a rights holder. Waiting for Congressional action may be both impractical and unnecessary.
Whether orphan works legislation proves useful or not will depend in large part on the details of any final bill. There were strong hints last time that in order to gain approval, a bill would become so burdensome and expensive that the library and archives community would be better off without new legislation, simply relying on fair use. No doubt that debate will be revived if any orphan works bills are re-introduced. But the SAA has made an important contribution from either perspective that one takes. In regard to potential legislation, they have offered a standard that legislators should consider as they draft a bill, as well as one that those concerned about the burden created by legislation can look at to measure the depth of the problem. In regard to those who would rely on fair use, the statement of best practices provides a set of guidelines that can help give users confidence that they are truly making a good faith fair use effort.