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Libraries, Orphan Works, and the Future of Copyright
Posted On October 4, 2016
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A Campaign Issue in 2016

Hillary Clinton’s presidential campaign includes plans to change patents and copyrights as a part of her pledge to make the U.S. more competitive and to encourage innovation. She has also pledged full funding for the U.S. Patent and Trademark Office (USPTO) through a permanent end to fee diversion. Clinton intends to enact long-overdue copyright reform to open unused orphan works to the public. No information on any plans that Donald Trump might have are available on his campaign website. And Carla Hayden, the new Librarian of Congress, was formally sworn in to the role in September, but she hasn’t yet publicly made any comments about her thoughts or intentions on this topic.

Frederiksen isn’t holding her breath for changes coming soon from Washington, D.C.: “As long as the majority of representatives in the Copyright Office represent the traditional publishing industry, I don’t think we will see any improvement in access to copyrighted/licensed materials.”

Glushko isn’t very optimistic either. “This is hard. I’m very unhappy with the Register of Copyrights and basically everything that they have done, so I have great apprehension about the new Librarian. The only comments I have heard her make were in the ‘we must protect rights holders’ [vein]. We need to work to protect the successes we have achieved.”

Smith says, “I think we will continue to see a gradual evolution in the development of the fair use analysis, as we have seen throughout its history. That evolution is going to come from the courts rather than from the Library of Congress. I am excited by the things the new Librarian of Congress can accomplish, but I recognize that she cannot really have a significant impact in how fair use is applied. In that regard, the best thing to be hoped for is that the new Librarian might be able to reduce the corporate capture of the Copyright Office and return it to its appropriate role as a neutral agency that seeks a balanced application of the law, rather than an advocate for the interests of the large legacy content companies.”

Harvard Looks Ahead

Copyright Office“It is getting better, but there is still a lot of work to be done,” Hansen says. “Most university attorneys aren’t copyright experts and certainly aren’t experts on how copyright applies to libraries, so there is a lot of room for things like this ‘Digitizing Orphan Works’ report to help [the] general counsel’s office get a better handle on specific legal issues and the risks involved, which in many cases are very low.”

“I do believe it is getting better,” Courtney says, “but I’d argue that ‘better’ means, in this scenario, ‘more informed.’ It is a matter of sharing our copyright expertise in this arena, combined with educating and copyright ‘myth-busting.’ Then we can build a greater community surrounding decision making for projects and services that might seem [to have] ‘risk’ but [would] actually be low to no-risk. And I understand that university offices of general counsel have a lot of other topics to deal with—employment, contracts, student privacy, FERPA. Borrowing a phrase from my colleagues at MIT, we want to be the ‘thought partners’ with the general counsel’s office, working together to understand rights that are special and unique to libraries and archives (like Section 108 and others). The ‘Digitizing Orphan Works’ report is designed exactly to do that—we have researched a lot of information about orphan works under the law, and thought carefully about its risk and potential use, ultimately to help everyone learn and understand risk in this academic, library environment.”

What are the next steps? “Hopefully, much more experimentation with ways to reduce risk by structuring digitization projects in line with some of the legal strategies reviewed in the report,” Hansen says. “There isn’t a one-size-fits-all solution, and libraries and archives are just beginning to get a firm handle on all the different ways they can go about managing these risks.”

Could the new Librarian of Congress be a tipping point? Courtney says, “Blue sky scenario? We would love to see a national program with the Library of Congress taking the lead in digitizing orphan works. Much of these materials could be made available with careful research, documentation, and legal analysis, and it would seem to fit within a new digital strategy for the Library of Congress. Of course, [it] is also in charge of the Copyright Office. And, despite that the Copyright Office’s past orphan works recommendations and legislative solutions have never really left the ground, the ‘Digitizing Orphan Works’ report creates an opportunity to open the conversation again and have the Copyright Office review the 20-plus legal defenses and strategies we outline for making open access to orphan works.”

Future Challenges

“Orphan works, along with those in the public domain, are such a challenge for libraries,” Frederiksen says. “This [Harvard] review, along with the copyright review work being done by HathiTrust, raises general awareness of the issue. Clarification of the use of orphan works, along with those in the public domain, will be especially useful for faculty being encouraged to create open educational resources.”

HathiTrust’s project incorporated two tools: Stanford University’s Copyright Renewal Database and the VIAF (Virtual International Authority File), which was used to find authors’ death dates. The University of Michigan Library’s Copyright Review Management System for U.S. publications (CRMS-US) helped determine copyright status. The project has been able to increase the public domain portion of HathiTrust to 39% of its total collection, all from post-1922 copyright dates.

 “I do think libraries in general are working hard to reimagine their futures,” Frederiksen says. “I don’t know that the Google Book Project did as much for this as the crisis in serials prices, which has had such an impact on library budgets. That said, holding on to sacred cows, such as just-in-case monograph budgets and collections, seems to be changing. But, it’s slow. Additionally, I think most small- to medium-sized libraries would be reluctant to enter into any mass digitization projects until a) there is more clarification on orphan works and public domain, and b) there is more clarification about the actual costs and benefits for their of mass digitization.”

“As far as orphan works are concerned, my hope is that librarians will take a more comprehensive look at copyright issues and adopt a risk management approach to digitization of collections that contain orphan works,” says Smith. “Much of the new [Harvard] report can be summarized as pointing us to a handful of strategies to understand the copyright situation for those projects and to manage the risk of an infringement claim. We should remember that some portion of the materials in many projects will be in the public domain, even when it is difficult to identify those works specifically. We can seek permission selectively to deal with the situations where objections to the digitization project are most likely. We can take steps to make our digital collections truly transformative to improve our posture in a fair use claim. And we can work with any rights holders who arise after the project is completed to ensure that they understand the value of the project and that they remain in agreement with the inclusion of the specific materials for which they hold rights.”

Smith says, “The next step for scholarly communications, in my opinion, is for libraries to find ways to transform how we spend our money, moving it away from the consumption of scholarly output sold by commercial intermediaries and emphasizing investment in the production of scholarship. This means looking for new business models for books and articles, including a vision that looks past the APC [article-processing charge], as well as support for many forms of digital scholarship.”

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Nancy K. Herther is a research consultant and writer who recently retired from a 30-year career in academic libraries.

Email Nancy K. Herther

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