Since posting my comments on the Google Book Settlement earlier this week, I have followed other commentary as closely as time has allowed. I have been interested to see that no one else whose comments I have seen seems to think that an appeal is likely. Indeed, I draw that conclusion entirely from the absolute silence I find about that option, while there is much discussion of other possibilities.
I imagine the reason for this is the strong sense that the rejection was, as Prof. Pamela Samuelson puts it in this interview, the only conceivable ruling that the judge could have made and that it is quite water-tight from a legal perspective. While it is not unheard of for parties to spend lots of money on lost causes, the majority of commentators obviously feel that Google, the Author’s Guild and the Association of American Publishers will not throw good money after bad by filing an appeal.
I am perfectly willing to pile on to this bandwagon, abandon my speculation about an appeal, and think about what other options the rejection might open up. One theme that seems to be emerging is that a renewed emphasis on solving the orphan works problem is now called for; certainly that is reflected in this article from the Chronicle of Higher Education. I absolutely agree that the rejection of the settlement should be a call for librarians, especially, to re-engage with the orphan works issue, and want to consider a little bit what form that re-engagement might take.
The Google Books Settlement gave librarians, copyright activists and even Congress a chance to sit back and assume that orphan works was being dealt with. Sure, we thought, there are millions of works that are still protected by copyright but for which no rights holder can be found; access to these works is a problem, but Google is going to solve it. Now we cannot look to Google for a solution, so it is worth revisiting what a sensible solution might look like.
I think we should consider the possibility that a legislative solution may not be either the most practical or the most desirable way to resolve the issue of access to orphan works. The orphan works bill that came closest to passing a few years ago was hardly ideal, since it would have created requirements both burdensome and vague for gaining a measure of extra protection from copyright liability. A good bill that really addresses the orphan works problem is probably both hard to conceive and unlikely to pass. So what alternatives short of a legislative solution might we consider?
Tho obvious answer is fair use, since most proposals for orphan works solutions would essentially codify a fair use analysis. Fair use, after all, is really an assessment of risk, since its goal is too reuse content in a way that wards off litigation. The Congressional proposals around orphan works would have simply reduced the damages available is defined situations, thus also having as a primary purpose the reduction of the risk of litigation. Careful thinking about projects like mass digitization of orphan works can accomplish the same goal by balancing analysis of the public domain, permissions where they are possible and needed, and a recognition that for truly orphan works, the fair use argument is much stronger since there is no market that can be harmed by the reuse.
When I say “truly” orphan works, I begin to hint at another element that might go in to an informal solution of the orphan works problem, the creation of rights registries to help locate copyright holders. This article about a copyright database, or registry, being built in the European Union — called the ARROW project — indicates that such an idea can garner support as a way to address the difficulty of orphans.
The Google Books Settlement, of course, envisioned the creation of a rights registry that would have helped a lot with the orphan works problem, but now we need to think about other, and perhaps less ambitious projects.
A registry would help because it would provide an easy (or easier) way to determine that a work is not an orphan. A search in a comprehensive registry could help a putative user find the rights holder to whom a permission request should be directed and, if no rights holder has registered, create a presumption that due diligence has been performed. As EU Commissioner Neelie Kroes puts it in the article,
one search in ARROW should be all you should need to determine the copyright status of a cultural good in Europe.
When I suggest a less ambitious registry than ARROW or the Google Registry that was never born, I am thinking that there are certain kinds of cultural goods — photography is an obvious example — where there are unique problems in marking the work in a way that permits easy identification of the rights holder. A registry for photographs, especially as image-matching software becomes so impressively accurate, could help photographers protect their rights and give potential users a little more security when deciding to use a work believed to be orphaned.
I want to emphasis that I am not suggesting a re-introduction of formalities in the US, akin to copyright notice and registration with the Copyright Office, anymore than the EU database would be a formality. Instead, I am proposing a voluntary mechanism that would help rights holders protect their own interests, make permission requests easier, and increase the accuracy of determinations about real orphan works.