[Libs-Or] "Safe zone" established during orphan works roundtable

[Diedre Conkling]

http://www.districtdispatch.org/2014/03/safe-zone-established-orphan-works-roundtable/

"Safe zone" established during orphan works roundtable
Posted on March 12, 2014 by Carrie Russell

It's become a tradition for rights holders, creators and cultural
institutions such as libraries, archives and museums, to gather to debate
about orphan works legislation. For those not in the know, back in 2006,
the Copyright Office published a
report<http://www.copyright.gov/orphan/orphan-report.pdf>(pdf) on
works that are thought to be "orphans." These are works still
protected by copyright whose rights holder or author is not known or cannot
be found. Users of these works--libraries, educators, private companies,
other creators, the general public--want to get permission to use these
works in ways that go beyond fair use or other user exceptions.

Libraries want to digitize unique collections and make them available to
the public, but rights holders cannot be found. Documentary filmmakers want
to use music in their films, but the record companies that held the
copyright have gone out of business and no one knows who might hold the
copyright. A teenager investigating her family tree wants to post some
family photos on Facebook, but no one knows who took the original
photograph. People choose to forego the use of the work for fear of
infringement thinking that the rights holder might show up some day and
sue. Thus library collections are not preserved in digital formats, unique
historical collections remain hidden in boxes in the back rooms of
archives, and creators who could use the works to create new works or new
businesses stop in their tracks. The Copyright Office believed that this
was "not in the public interest, particularly where the copyright owner is
not locatable because he no longer exists or otherwise does not care to
restrain the use of his work."

Unfortunately since 2006, rights holders, creators and users of content
have been unable to negotiate a copyright legislation that would allow the
use of these orphan works in certain situations.
Legislation<http://en.wikipedia.org/wiki/Orphan_works_in_the_United_States>was
crafted and considered over two Congresses but the stakeholders could
not come to anything even looking like consensus. After no progress had
been made, Congress got tired of talking about it and there were ongoing
court cases dealing with orphan works.

Time marched on. The Google Book Settlement was thrown
out<http://copyright.columbia.edu/copyright/2011/03/22/google-books-copyright-settlement-rejected/>of
court leading to a new court case where Google argued that its
scanning
of books--many of them orphans--to improve their search engine was a
transformative fair use. The court agreed. HathiTrust won its fair use
case<http://en.wikipedia.org/wiki/Authors_Guild_v._HathiTrust>against
the Authors Guild for its scanning and preserving works. Again,
many of these works were orphan works. Both of these cases are being
appealed, but did these lower court rulings and other court decisions
indicate that existing fair use law (Section 107) already address the
orphan works problem? Was separate orphan works legislation therefore
unnecessary? No, said the Copyright Office, and the majority of rights
holders and creators.

This week <http://www.copyright.gov/orphan/>, the usual suspects (including
the American Library Association) have come back the drawing board, to air
opinions and concerns. Would orphan works roundtable redux be just another
badly made Hollywood sequel? Not quite.

During Tuesday's U.S. Copyright Office roundtable on orphan works, a
representative from an author's association threatened to sue libraries for
digitizing collections (not posting the works online but just for
digitizing the collection, perhaps for preservation purposes).

Wait a minute.

Let me check my notes to make sure I've got this right...the representative
said, "Just wait for the next lawsuit. We are on you." For those not
familiar with these roundtable sessions, people do express their strong
opinions (many opinions that are totally understandable), but in my
experience, announcing one's plan to sue another person or group, *out loud*,
in front of everyone in the room, this was a first. Attendees, who had just
started to nod off, took notice. The response was uncomfortable laughter,
perhaps this was something just said in the heat of the moment, or was
meant to be funny. (See me giving the benefit of the doubt.)

But later, the author's representative said it again. "I warn you, if you
do it (digitization), I'm going to take you to court." Well, so much for
seeking common ground. It looks like--yet again--that parties cannot come to
agreement on orphan works.

I have to say I felt particularly offended. If anything, we librarians are
law-abiding to a fault. I can say this with some certainty because I have
worked with librarians --public, school, academic --on this orphan works
problem since 2005, maybe earlier.

So I felt compelled to go to the microphone, and suggest that threatening
libraries with lawsuits was not a good idea if we want to work together on
this issue, the representative said--and I am not kidding--"It's worked
before."

Lesson: these long and exhausting meetings can occasionally be kind of
interesting. Sadly, they do not engender goodwill as we seem to drift
farther and farther apart from reaching agreement, or at least a little
truce.

I must add that later in the day, the authors' group representative
apologized to me, and I believe she was sincere. I accepted her apology.

Later the Copyright Office conveners had to announce a "safe zone" for the
rest of the day. Like rowdy school children, we were asked to behave.

Moving forward, the U.S. Copyright Office is now accepting public
comments<http://www.copyright.gov/newsnet/>on orphan works
legislation. The window for public comments closes April
14, 2014.


http://www.districtdispatch.org/2014/03/safe-zone-established-orphan-works-roundtable/

-- 
*Diedre Conkling*




*Lincoln County Library District P.O. Box 2027Newport, OR 97365Phone & Fax:
541-265-3066 <541-265-3066> Work email**:
**diedre at lincolncolibrarydist.org*<diedre at lincolncolibrarydist.org>
* Home email: **diedre08 at gmail.com* <diedre08 at gmail.com>

 "If you don't like something, change it. If you can't change it, change
your attitude."--Maya Angelou
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