The UC Berkeley Center for Law and Technology (BCLT) is among the most eminent study centers for intellectual property (IP) law. Coordinated by Professor Pamela Samuelson, this last week it pulled together approximately 200 highly accomplished and well-spoken legal scholars, practitioners and librarians in a small conference on orphan works, “Orphan Works and Mass Digitization.”
Obstacles and opportunities.
The conference started with a series of talks on the dysfunctions of current copyright law, with its propensity to generate orphans. The overall consensus, most succinctly aired by Brewster Kahle of the Internet Archive, is that the the problem is so pervasive and the barriers to a comprehensive resolution so high — while networked communications make sharing ever more straightforward — that institutions are increasingly prone to adopt a “Damn the torpedoes” approach. For these panelists, the prospect of new legislation attempting to facilitate use of material with dim rights status is often scarier than the status quo given political deadlock; further, uncertainty over the use of these materials is endemic but the risk is fairly low, in part because libraries, archives, and museums (LAMs) are respectful and conservative. At the same time, the cultural value is often tremendous.
For examples of materials with high merit and difficult rights status, Bruce Hartford of the American Civil Rights Movement website highlighted the sheer impossibility of determining rightsholders for many archival materials: internal documents created by Student Nonviolent Coordinating Committee (SNCC) in the 1960s are orphans because SNCC no longer exists. A photograph taken by an unknown prisoner in a Southern jail of another prisoner is an orphan because the copyright is held by the unknown prisoner who took the original photograph. In a similar vein, Rick Prelinger aired a color video, possibly shot by an employee of the War Relocation Authority, of the 1944 release of Japanese-Americans interned at the Jerome War Relocation Center in Arkansas.
This is a crucial point that is rarely noted: orphan status may be most common for materials generated on the margins of society — by people whose names and presence were never recorded, sometimes because of persecution; or by informal or transient organizations, groups, and movements that never had an opportunity to create their own legacy. For this content — which includes some of the most important artifacts that a society is likely to produce, documenting both its struggles and those who speak without a recorded voice — formal interventions are unlikely to make a meaningful difference because there is so little ownership data to work with. In these cases, Fair Use is often the appropriate apparatus.
Maria Pallante’s address
Maria Pallante, the U.S. Register of Copyrights addressed the conference midday, observing that “a true orphan does not further the purpose of the copyright system.” Ms. Pallante noted that there appeared to be broad consensus that that a system mandating diligent search for rightsholders for all classes of content was not likely to be tractable or even desirable, and that we should strive to avoid a copyright system that “does not further faith in the rule of law.” She informed us that it was a priority of her Office to reset the copyright balance for libraries and archives in a digital age, and that rather than make do with increasing imperfections, legislative initiatives should be sought because Congress bears a responsibility to update the law.
However, Pallante refuted the notion that it would be acceptable to effect an incremental reform of orphan copyright, starting with exceptions for LAMs, non-commercial uses of orphans, and excluding photographs, where ownership is particularly obscured. She signaled her intent to bring more comprehensive comments on library exceptions, orphan works, and collective licensing to the next (113th) Congress. Ms. Pallante also indicated that it would be a priority to automate and make fully accessible copyright records. In a follow up question on diligent search, which can easily become impractical for mass digitization projects, Pallante suggested that the intensity of search might correspond to the prospect of commercial use, and the mission of the organization seeking to clarify status.
Getting to use.
Later sessions focused on mechanisms to “free” the orphans. Several attendees expressed their want to shorten copyright terms; revisit registration formalities such as renewals (orchestrated internationally); and encourage more expansive Fair Use. Jonathan Band noted that wariness over Fair Use could be mitigated by removing the risk of statutory damages for cultural organizations. Jennifer Urban of BCLT cautioned that we need to evaluate the benefits and costs of diligent search requirements, a likely component of orphan works legislation, against the costs of collective licensing, which is more of a blunt end of the rights hammer, but would obviate the need for individualized search. In neither case would we want exceptions for libraries or licensing frameworks to impinge on our ability to invoke existing limitations such as Fair Use.
The passions of the crowd were raised by Professor Lydia Loren’s plea to re-conceptualize orphans as “hostages” needing to be freed for use. The hostage metaphor shifts the focus from the presumption that we need to locate a new owner towards content use. Loren cited examples from real property law to consider waste, abandonment, and property titles, proposing a system where orphans could be moved into open access, eliminating liability for re-use of content that had no observable ownership. A key component of such a system is that any identifying documentation would be openly available and searchable. Since part of the identification problem is maximizing that information, we need to encourage rightsholders to ex ante document and release metadata, potentially by limiting their claims if they choose to restrict access to the information they hold in their vaults.
Community daylighting of orphans was seconded by subsequent talks. Molly van Houweling observed that we need systems, such as Professor Loren’s, that actively reward instead of punish efforts that produce information helping to re-unite rightsholders with their works. Jule Sigall of Microsoft supposed that creating centralized registries was too ambitious at this stage. However, any user could document rights and descriptive metadata for orphans, perhaps obtaining safe harbor in exchange for openly sharing information in online databases. In such a scheme, the Copyright Office would evolve from a data aggregator to a certification agency that could endorse distributed registries.
The final half-day of the conference focused on mass digitization and data mining. Hal Varian, Google’s economist and professor at UC Berkeley, started by observing that one problem with registries is that they let you locate rightsholders but they do not assist in transactions. A collective management organization or collective licensing framework — a siren call for private libraries — would allow one to do both, with a set menu of prices eliminating transaction costs. The copyright librarian Nancy Sims commented that Varian presumed a commercial motive for content access which libraries would seek to provide for free. Many people value, but might not be able to afford, access to digitized works; such access is the mission of cultural organizations.
The scope of the conference was broadened near the end by the talk of Joe Karaganis from Columbia University’s public policy forum, American Assembly. Karaganis discussed the inevitable diffusion of works from formal digital libraries into informal and DIY libraries serving populations that cannot otherwise obtain or afford access to content. These “shadow libraries” may rival or even surpass the scope of their more aristocratic brethren, even if they are messy. The rise of distributed libraries and uncontrolled cultural archives has another valuable aspect: they are resilient, less subject to control and censorship.
Symbiosis or conflict?
Looking at the longer term trends in e-reading, Karaganis predicted that inexpensive ereaders, below $35., will quickly become widely available, democratizing access to knowledge. An ever-growing copy culture is likely to generate over-reactive calls for IP enforcement, and ultimately be increasingly disruptive to legacy publishers, but it will also prove to be hugely beneficial to the growth of a global reading culture.
This tension between formal culture and its informal siblings is something that we have often naively contested, but in reality it is more of a symbiosis. Summing up towards the end of this singular conference, Jason Schultz noted in twitter that the key question was how people and their institutions can be part of this world, and learn to serve publics who know how to copy. Our ability to address that question will serve as answer to whether we can transform our existing institutions and markets to be a protagonist in the world around us, or be reduced to passive digital storehouses.