Associate Professor Matthew Sag, Loyola University of Chicago School of Law Slides available at .

Associate Professor Matthew Sag, Loyola University of Chicago School of Law

Slides available at www.matthewsag.com

The orphan works problem

Use of copyrighted works is not intrinsically harmful

Cost of getting permission > value of use > 0– Copyright status uncertain– Author/publisher contracts unclear, private/public records faulty,

interests pass by contract, will, intestacy, merger, sale, bankruptcy, …

Cost of use without permission > value of use > 0– Threat of attorney fees, statutory damages, class actions!

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Is there still an Orphan Works Problem?

Judge Baer in Authors Guild v. HathiTrust Print-Disabled Access Search Computational analysis e.g. text mining

– “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.”

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Copyright & Non-Expressive Use

Copyright law does not prevent library digitization for the purpose of non-expressive use. See my previous work, e.g. • Copyright and Copy-Reliant Technology (2009)• Orphan Works as Grist for the Data Mill (2012)• Digital Archives: Don’t Let Copyright Block Data

Mining* 490 Nature 29-30 (October 4, 2012)• Digital Humanities amicus brief in Authors Guild v.

HathiTrust, and __ v. Google* District Judge Harold Baer, Jr., decision in Authors Guild v. HathiTrust

4* with Matthew Jockers and Jason Schultz

Digitization and Computational Freedom

The importance of search and disabled access are self-evident.

What about the Digital Humanities?Discovery of new worksObservation of patternsStudy literature in broader context

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Google Ngram Visualization Comparing Frequency of “The United States is” to “The United States are”

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As cited in Authors Guild v. HathiTrust 2012

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American Slavery in American, English, and Irish Literature, 1800-1899. Matthew Jockers, Macroanalysis: Digital Methods for Literary History (forthcoming February 2013)

Proportion of Irish Literature with a topic of ‘slavery’ spikes ~ 1860-65

Proportion of Irish Literature with a topic of ‘slavery’ spikes ~ 1860-65

Yes, There is still an orphan works problem

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The Copyright Office’s Renewed Interest in Orphan Works – Some Concerns

(1) Case law has unblocked some of the most significant orphan works issues (ADA, Non-expressive use, Search)

– Proposed “solutions” to the “orphan works problem” might be a retrograde step

– See Jennifer Urban for a discussion of why an orphan works program may be fair use. The fair use solution is obscured by talk of ECL and statutory fixes.

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(2) The use of copyrighted works is not malum in se– “Solutions” that focus on preventing/taxing use

without corresponding tangible benefits to rights holders make no sense. (Ariel Katz has much to say on this)

(3) Collective licensing and compulsory licensing are difficult to get right

– See generally, Peter DiCola & Matthew Sag An Information-Gathering Approach to Copyright Policy 2012.

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Would a compulsory license for expressive use of orphan works actually work?

Three Questions Who receives compensation?For what uses?At what price or under what price-setting mechanism?

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Who receives compensation?

Copyright owners Author or publisher?• Rough & ready division as in the Google Book

Search ASA?• Arbitration system to quickly settle issues?

What to do with unclaimed funds?A tax on reading is not a virtue of it selfMoral hazard for collection agency

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For what uses? Should we roll-back current fair uses?

E.g. digitization for search, non-expressive uses in general, print-disabled access?

Should we raise a levy on things that might be fair use? Transaction cost fair usesPositive spill-over fair usesUse outside proper scope of copyright monopoly fair uses

– non-profit, educational, private study,

Should we limit to things hard to justify as fair use? 20% previews, full-access, ebook?

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At what price/price-setting mechanism?

Fixed fee as in the cover licenseCongress, Copyright Office, Magic 8-Ball?

If you propose a complex arbitration proceeding as in Webcasting, you need a decision standardWilling-buyer, willing-seller –> arbitrary results.

– There is no market for permissions in orphan works– Ignores public interest in improved access library collections– Ignores public interest in public domain works likely to be

mistaken as orphan works.

Reasonable expectations, Investment backed expectations, Fair remuneration, Fair profit-sharing?Public interest?

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Adversarial rate-setting process? Relies on the parties for information – but orphan

works rights holders are not parties! Favors incumbents with institutional expertise

“Agree or arbitrate” framework Would be even more insane in the orphan works

context than in webcasting No representation of the public interest

The court in Authors Guild v Google rejected private agreement in the form of the ASA for good reasons. Why trust private agreement in an arbitration context?

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My Broader Concern

Many proposed “solutions” will be overly centralizingLeading to either log-jam or capture in the Copyright Office, orA collective rights organization monopoly power and no regard for the public interest

We need decentralizing solutions!

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“Collective licensing sorts out and creates standardization”Roy Kaufman, Copyright Clearance Center at the In Re Books Conference on Friday

License Some rights reserved by ndrwfgg

License Some rights reserved by Fordan

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Before the Digital Audio Transmission right

Emerging experimental ecosystem

After 3 different arbitrations and 6? Legislative reboots

Real Orphan Works Reform

De-OrphaningDigitizing recordsLegal decision-making tools, e.g. Elizabeth Townsend-Gard’s Durationator project

For the Orphans that remain, most Proposals aimed at the first half of the ProblemCost of getting permission > value of use > 0

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Real orphan works reform would focus on the second half of the orphan works problem

Cost of use without permission > value of use > 0No attorney fees, statutory damages, for good faith useNo class actions against good faith useBroad definition of good faith • commercial, reasonable effort to locate RH and

determine whether use would be approved• Presumption in favor of use for works published

between 1923 and 1977 unless the rights holder notifies the Copyright Office to the contrary

• Presumption in favor of use for unpublished works if the author is unknown or deceased. 20