Ever since it appeared, I knew I should write about this new report concerning orphan works that the Copyright Office issued earlier this month. But, to be honest, I have been on vacation, and have not had a chance to read the full report yet, only excerpts. Fortunately, on Monday Mike Masnick from Techdirt posted about the report and absolutely nailed it. So I have little to add, and simply want to direct readers to Mike’s post.
As Mike observes, the new CO report would mostly make a serious problem worse, in that it would make the use of orphan works more difficult rather than less. The idea of creating a registry for users to register their proposed use is positively Kafkaesque; the real need is to be able to better identify rights holders, not users. So why not provide incentives for rights holders to register, rather than creating a new registry that will probably not be used, since it is so counter-intuitive and will be unknown to the vast majority of putative users?
The Techdirt post correctly notes that the problem of orphan works increased exponentially after the U.S. made two changes in its law — the elimination of formalities and the extension of the copyright term of protect to life plus 70 years. These changes were made because the U.S. joined the Berne Convention and other international treaties on copyright in the 1980s, so reversing them would be very difficult. Still, the problem is world-wide, so maybe someday sanity will prevail at the WIPO and these issues will be addressed directly, instead of taking a kind of backwards approach that tries to solve a problem without addressing its root causes, which has the result of making things worse. See the suggestions I made several years ago for solving the “Berne Problem” here and here.
The most troubling aspect of the Copyright Office’s new report is the disdain with which it treats fair use. The U.S. is actually in a better position as far as uses of orphan works are concerned than most nations because our judges were wise enough to create this doctrine over 150 years ago. But today’s Copyright Office thinks it knows better; it believes that fair use is “of limited utility” in solving the orphan works problem. Instead, we need more bureaucratic apparatus. Worse, to get to this position, the CO presents the HathiTrust case, with its strong affirmation of fair use, as being about “the digitization of millions of non-orphaned works” (p.42). This is ridiculous, of course; the HathiTrust corpus contains both orphan works and works for which rights holders can be identified. The CO seems to take the position that since specific uses of orphan works were not ultimately adjudicated in the HathiTrust case, that case is not relevant to the application of fair use to the orphan works problem. So although the report does recommend that any legislative “solution” to the orphan works problem should preserve the users’ ability to rely on fair use, the CO does not seem to feel that fair use is very helpful. But that simply reflects the prejudice that the CO has about fair use, a prejudice that makes them an unreliable guide to copyright law in the U.S.