Recently the Copyright Office has held a series of roundtable discussions and comment periods on the subject of orphan works. As seasoned readers will know, this has become a kind of movable feast, happening at regular but unpredictable intervals. My suspicion is that the CO is under a lot of pressure from big rights holder groups to find some way to impose a collective licensing scheme for orphan works, and these periodic discussions and reports are an effort to stave off the importuning of the lobbyists. Certainly Congress has shown very little interest in adopting an orphan works “solution,” and as more and more courts recognize that fair use can move us a long way towards productive uses of orphaned works without introducing the “tax for nobody” that would be imposed by an extended collective licensing scheme, that appetite is likely to decline even further.
Because the events seem to have so little payoff, I admit that I allowed the pressure of other work to cause me to largely ignore this iteration. In the past I have helped Duke and other organizations prepare comments, but this time I left the heavy lifting to colleagues. Fortunately their is a growing cadre of people able to advance the arguments in favor of fair use and the best ways to deal with the immense problem of orphan works, so my neglect was trivial. But I still want to help my readers find some of the best commentary from this latest round of discussions.
From what I have heard, at least one of these roundtables generated a lot more heat than light, featuring some shouting and at least one direct threat of litigation from a rights holders’ representative. But apart from the circus atmosphere, substantive issues were discussed, and a great summary of the more mature parts of the conversation can be found in this post from the ARL Policy Notes blog.
For the library community, the strongest support we get in these events comes from the superb work of the Library Copyright Alliance, which is supported by the ALA, the ARL and the ACRL. The full set of comments prepared by the LCA and submitted on behalf of our profession is a wonderful introduction to the problem, why it matters so much to libraries, and the directions from which a solution might come.
Perhaps the most important result of this discussion, building nicely on the LCA comments, is this great set of comments about myths and misstatements regarding fair use. These events sometimes seem like mere opportunities for lobbyists to tell tall tales to Congressional staffers and bureaucrats, and it is often necessary to try, after the fact, to set straight a very crooked record. On the issue of fair use, Brandon Butler, Peter Jazsi and Mike Carroll, all from American University, do a great job of correcting the erroneous things that were said in these public events. Their comments offer a clear vision of fair use as a coherent and reliable doctrine that has evolved logically over time, continuing to perform its core function even in periods of rapid technological change. This is a great statement and should be required reading for every librarian and academic.
One sentence summary of the comments; fair use is neither unpredictable nor incoherent, as some have argued, but is an evolving doctrine that is relied upon safely by millions of ordinary people and can provide a strong foundation for the careful consideration of even mass programs of digitization.
Finally, as I said above, one of the purposes of these regular events seems to be to try to stumble towards an extended collective licensing scheme that Congress might consider, even though these schemes impose an unnecessary tax on users without benefiting legitimate rights holders and have not worked well in the nations that have tried them. These comments about ECL schemes from the Electronic Frontiers Foundation are also worth reading. They do an excellent job of briefly explaining the broad consensus that ECL is a poor solution to the orphan works problem.