PK calls for simple and usable solutions to the problem of orphan works

Among the many valuable collections that the Library of Congress holds is a vast collection of old newspapers. The Library explains (page 16) that digitizing these collections can provide new and efficient tools for researchers. These newspapers offer a wealth of information on topics such as “the Great Depression, American perspectives on the rise of Hitler and World War II, post-World War I and immigrant communities in America, the assassination of President John F. Kennedy, community views on the Civil Rights Act of 1968, to name a few.” These newspapers and scores of other works cannot be publicly disseminated without permission from their copyright owners, who are often unlocatable. These works are called orphan works. The Copyright Office is conducting an inquiry into possible solutions to the problem of orphan works. We filed reply comments in that inquiry yesterday.

For those unfamiliar with the problem of orphan works and its history, here’s some background: Orphan works are copyrighted works whose owners cannot be found. Because these works are still under copyright, subsequent users cannot use these works without the owner’s permission. In 2006, the Copyright Office published its first report on orphan works recommending that a user who searched diligently for the owner be permitted to use the work. If the owner emerged after the use began, she would be entitled to a reasonable compensation. In some circumstances, a court could require a user to stop the use. This proposal formed the basis of bills introduced in Congress in 2006 and 2008. However, these bills failed to pass.

Last year the Copyright Office restarted the debate on orphan works by issuing a call to the public to comment on possible solutions. After an initial round of comments, in which we also provided some thoughts, the Office called for replies. Yesterday, we filed our reply.

In our filing we argue that solutions to the problem of orphan works can be simple and very practical. Yet to achieve that goal, policy makers will have to maintain their focus on orphan works and not be tempted to solve larger systemic problems with the copyright generally.

In keeping with that approach, we explain that any new orphan works solution should keep requirements to search for copyright owners clear and simple. Users must not be required to compensate multiple parties in addition to the owner. For instance, if the owner cannot be located the user should not have to compensate the several artists involved in the creation of a work. Imposing such a requirement would lead to problems that proponents of this solution might not have thought about or intended.

Similarly, a simple and usable solution should facilitate digitization efforts. These efforts provide many benefits to the public including preservation of valuable works, indexing so that researchers easily search for relevant materials, and public access to collections of materials. In order for solutions to be effective, they have to recognize that not all uses of digitized material deserve the same treatment. Digitizing for preservation and indexing are generally fair uses and may not require a separate orphan works solution.

Providing public access to digitized material, on the other hand, might not always be a fair use and might require a different solution. In devising such a solution, policy makers must recognize the sheer difficulty of searching for the owners of vast numbers of works in a particular collection. Consequently, they could call for lower search obligations on the part of digitizers. The law could balance this lower search standard with other measures to protect owners. For example, it could provide emerging owners with a right to require the digitizer to take down his content.

These are initial suggestions. The orphan works inquiry will benefit from a robust debate among all affected constituencies. In the end, we hope that the importance of the public’s ability to access valuable pieces of its heritage will guide solutions. If it does, the Library of Congress will be able to digitize and make publicly available its vast and valuable collection of works and all of us will be the better for it.

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