Seeking Balance in Copyright and Access

Posted by Dan Cohen in July 30, 2015.

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The most important word in discussions around copyright in the United States is balance. Although there are many, often strong disagreements between copyright holders and those who wish to provide greater access to our cultural heritage, few dispute that the goal is to balance the interests of the public with those of writers, artists, and other creators.

Since the public is diffuse and understandably pays little attention to debates about seemingly abstract topics like copyright, it has been hard to balance their interests with those of rightsholders, especially corporations, who have much more concentrated attention and financial incentives to tilt the scale. (Also, lawyers.) Unsurprisingly, therefore, the history of copyright is one of a repeated lengthening of copyright terms and greater restrictions on public use.

The U.S. Copyright Office has spent the last few years looking at possible changes to the Copyright Act given that we are now a quarter-century into the age of the web, and its new forms of access to culture enabled by mass digitization. Most recently, the Office issued a report with recommendations about what to do about orphan works and the mass digitization of copyrighted works. The Office has requested feedback on its proposal, as well as on other specific questions regarding copyright and visual works and a proposed “making available” right (something that DPLA has already responded to). Each of these studies and proposals impact the Digital Public Library of America and our 1,600 contributing institutions, as well as many other libraries, archives, and museums that seek to bring their extensive collections online.

We greatly appreciate that the Office is trying to tackle these complex issues, given how difficult it is to ascertain the copyright status of many works created in the last century. As the production of books, photographs, audio, and other types of culture exploded, often by orders of magnitude, and as rights no longer had to be registered, often changed hands in corporate deals, and passed to estates (since copyright terms now long outlast the creators), we inherited an enormous problem of unclear rights and “orphan works” where rightsholders cannot easily—or ever—be found. This problem will only worsen now that digital production has given the means to billions of people to become creators, and not just consumers, of culture.

Although we understand the complexity and many competing interests that the Office has tried to address in the report, we do not believe their recommendations achieve that critical principle of balance. In our view, the recommendations unfortunately put too many burdens on the library community, and thus too many restrictions on public access. The report seeks to establish a lengthy vetting process for scanned items that is simply unworkable and extraordinarily expensive for institutions that are funded by, and serve, the public.

Last week, with the help of DPLA’s Legal Advisory Committee co-chair Dave Hansen, we filed a response to one of the Office’s recent inquiries, focusing on how the copyright system can be improved for visual works like photographs. As our filing details, DPLA’s vast archive of photographs from our many partners reveals how difficult it would be for cultural heritage institutions to vet the rights status of millions of personal, home, and amateur photographs, as well as millions of similar items in the many local collections contained in DPLA.

These works can provide candid insights into our shared cultural history…[but] identifying owners and obtaining permissions is nearly impossible for many personal photographs and candid snapshots…Even if creators are identifiable by name, they are often not locatable. Many are dead, raising complicated questions about whether rights were transferred to heirs, or perhaps escheated to the state. Because creators of many of these works never thought about the rights that they acquired in their visual works, they never made formal plans for succession of ownership.

Thus, as the Office undertakes this review, we urge it to consider whether creators, cultural heritage institutions, and the public at large would be better served by a system of protection that explicitly seeks to address the needs, expectations, and motivations of the incredibly large number of creators of these personal, home and amateur visual works, while appropriately accommodating those creators for whom copyright incentives do matter and for whom licensing and monetization are important.

Rather than placing burdens on libraries and archives for clearing use of visual works, we recommend that the Copyright Office focus on the creation of better copyright status and ownership information by encouraging rightsholders, who are in the best position to provide that information, to step forward. You can read more about our position in the full filing.

When we launched in 2013, one of the most gratifying responses we received was an emotional email from Australian who found a photograph of his grandmother, digitized by an archive in Utah and made discoverable through DPLA. It’s hard to put a price on such a discovery, but surely we must factor such moments into any discussion of copyright and access. We should value more greatly the public’s access to our digitized record, and find balanced ways for institutions to provide such access.