[DPLAfest Workshop Summary] The Elephant in the Room: Copyright and New Ways Forward

As the Digital Public Library of America continues to grow, it has become increasingly clear to contributing organizations that they must begin to address the copyright obstacles that prevent much of their 20th century collections from being made available online. In a workshop led by members of the DPLA Legal Committee, which includes Jason Schultz (NYU Law) and David Hansen (Berkeley Law & UNC Law), and in conjunction with Argyri Panezi (European Univ. Institute) and Meredith Jacob (American Univ., Washington College of Law), a full room of DPLA Fest 2013 workshop participants explored the broad range of copyright issues that affect the online availability of library collections.

Jason Schultz began by highlighting some of the most visible legal concerns – the recent slew of library copyright litigation in Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge Univ. Press v. Becker (Ga. State). All three cases are currently pending, with opinions expected in the near future. This trio of cases will address the applicability of the doctrine of fair use to library and educational uses of copyrighted works in digital formats for purposes of preservation, indexing, “snippet view”, full-text display for blind and print disabled users, and for classroom use.

Recognizing the importance of foreign developments, Argyri Panezi reviewed the state of the law and practice in the European Union regarding mass digitization, orphan works, and its effect on Euoropeana, DPLA’s European library counterpart. Regarding orphan works (i.e., copyrighted works whose owners cannot be located), Argyri described the recently passed EU orphan works directive, which—when implemented at the national level—will give non-profit libraries, archives, and similar organizations the right to use orphan works after first conducting a diligent search. She also relayed the EU libraries’ criticism of the new directive as being ineffective because of the burdens of “diligent search,” and the directives failure to address mass digitization.

David Hansen explained how several aspects of U.S. law—including the elimination of copyright formalities, the extension of copyright terms, and the possibility of large statutory damage awards—make orphan works a special concern for libraries and archives in the United States, many of whom have collections that are thought to contain a large number of orphans. Although the Copyright Office has investigated the issue twice, first in a 2006 report and accompanying legislative recommendation to limit remedies available against users who first conduct a “diligent search” for owners, and again in an October 2012 request for comments on the topic of orphan works and mass digitization, Congress has not enacted any orphan works legislation.

Finally, Meredith Jacob described some of the options currently available for U.S. libraries and archives to address orphan works and mass digitization. Starting from the fair use best practices that have been so successful in helping documentary filmmakers, journalists, libraries, and others navigate the application of fair use in their respective fields, she described a joint project by American University and UC Berkeley researchers to develop best practices for libraries, archives and other memory institutions that seek to digitize and provide access to collections that contain orphan works. That project—now in the phase of drafting the best practices document—has held meetings with over 150 librarians and archivists from across the United States.

Audience discussion was lively and, while by no means unanimous, highlighted several important points of general agreement that librarians, their organizations, and policymakers should consider:

• That the creation of copyright-relevant information about copyrighted works—through registries, metadata, or otherwise—should be encouraged to help alleviate the orphan works problem in the future;
• That individualized, object-level diligent searches for potential orphan works is generally not feasible for mass digitization projects and that other alternatives should be explored;
• That libraries should take advantage of positive fair use rulings as soon as those cases, noted above, are decided.

In terms of what the DPLA can do, the workshop concluded that the DPLA could be most effective for its community by curating a toolkit of trustworthy and current content, produced by others, such as white papers, guides, best practices, advocacy materials and other resources that address library legal issues.

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