Help the Copyright Office Understand How to Address Mass Digitization

By DPLA, September 25, 2015.
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Guest post by Dave Hansen, a Clinical Assistant Professor and Faculty Research Librarian at the University of North Carolina’s School of Law, where he runs the library’s faculty research service.

Wouldn’t libraries and archives like to be able to digitize their collections and make the texts and images available to the world online? Of course they would, but copyright inhibits this for most works created in the last 100 years.

The U.S. Copyright Office recently issued a report and a request for comments on its proposal for a new licensing system intended to overcome copyright obstacles to mass digitization. While the goal is laudable, the Office’s proposal is troubling and vague in key respects.

The overarching problem is that the Office’s proposal doesn’t fully consider how libraries and archives currently go about digitization projects, and so it misidentifies how the law should be improved to allow for better digital access. It’s important that libraries and archives submit comments to help the Office better understand how to make recommendations for improvements.

Below is a summary of the Office’s proposal and five specific reasons why libraries and archives should have reservations about it. I strongly encourage you to read the proposal and Notice of Inquiry closely and form your own judgment about it.

For commenting, a model letter is available here (use this form to fill in basic information), but you should tailor it with details that are important to your institution. Comments are due to the Copyright Office by October 9, 2015. The comment submission page is here.

The Copyright Office’s Licensing Proposal

The Copyright Office’s proposal is that Congress enact a five-year pilot “extended collective licensing” (ECL) system that would allow collecting societies (e.g., the Authors Guild, or the Copyright Clearance Center) to grant licenses for mass digitization for nonprofit uses.

Societies could, in theory, already grant mass digitization licenses for works owned by their members. The Office’s proposed ECL system would allow collecting societies to go beyond that, and also grant licenses for all works that are similar to those owned by their members, even if the owners of those similar works are not actually members of the collective themselves. That’s the “extended” part of the license; Congress would, by statute, extend the society’s authority to grant licenses on behalf of both members and non-members alike. Such a system would help to solve one of the most difficult copyright problems libraries and archives face: tracking down rights holders. Digitizers would instead need only to negotiate and purchase a license from the collecting societies, simplifying the rights clearance process.

Why the Copyright Office’s Proposal is Troubling

In the abstract, the Office’s proposal sounds appealing. But for digitizing libraries and archives, the details make it troubling for these five reasons:

First, the proposal doesn’t address the types of works that libraries and archives are working hardest to preserve and make available online—unique collections that include unpublished works such as personal letters or home photographs. Instead of focusing on these works for which copyright clearance is hardest to obtain, the proposal applies to only three narrow categories: 1) published literary works, 2) published embedded pictorial or graphic works, and 3) published photographs.

Second, given the large variety of content types in the collections that libraries and archives want to digitize—particularly special collections that include everything from unpublished personal papers, to out-of-print books, to government works—there is no one collecting society that could ever offer a license for mass digitization of entire collections. If seeking a license, libraries and archives would still be forced to negotiate with a large number of parties. And because the proposed ECL pilot would include only published works, large sections of collections would remain unlicensable anyway.

Third, digitization is an expensive investment. Because the system would be a five-year pilot project, few libraries or archives would be able to pay what it will cost to digitize works (not to mention ECL license fees) if those works have to be taken offline in a few years when the ECL system expires.

Fourth, for an ECL system to truly address the costs of clearing rights, it would need to include licensing orphan works (works whose owners cannot be located) alongside all other works. While the Copyright Office acknowledges in one part of its report that licensing of orphan works doesn’t make sense because it would require payment of fees that would never go to owners, it later specifies an ECL system that would do just that. The Society of American Archivists said it best in its comments to the Copyright Office: “[R]epositories that are seeking to increase access to our cultural heritage generally have no surplus funds. . . . Allocating those funds in advance to a licensing agency that will only rarely disperse them would be wasteful, and requiring such would be irresponsible from a policy standpoint.”

Finally, one of the most unsettling things about the ECL proposal is its threat to the one legal tool that is currently working for mass digitization: fair use. To be clear, fair use doesn’t work for all mass digitization uses. But it likely does address many of the uses that libraries and archives are most concerned with, including nonprofit educational uses of orphan works, and transformative use of special collections materials.

The Office recognized concerns about fair use in its report, and in response proposed a “fair use savings clause” that would state that “nothing in the [ECL] statute is intended to affect the scope of fair use.” Even with an effective savings clause, the existence of the ECL system alone could shrink the fair use right because fewer users might rely on it in favor of more conservative licensing. As legal scholars have observed, fair use is like a muscle, its strength depends in part on how it is used.

Rather than focus its energy on creating a licensing system that can only reach a small segment of library and archive collections, the Office should instead promote the use of legal tools that are working, such as fair use, and work to solve the problems underlying the rights-clearance issues by helping to create better copyright information registries and by studying solutions that would encourage rightsholders to make themselves easier to be found by potential users of their works.