Orphan Works Notice of Inquiry ends Jan. 4th, setting the stage for a new era of publishing industry debate on fair use

As 2012 begins to wind down, it is time to turn to the transformation taking place in the publishing sector. 2012 may be marked as the end of the printed book – not because physical publishing has ended but because the ingredients for its demise are now all at hand. Of course, it will continue indefinitely just as vinyl records continue to have a place in the music economy, just not a significant place.

I have previously discussed the broad sweep of changes affecting publishing. SeeForetelling the Future of the Book Business.” Among the issues affecting the future of publishing are the legacy impacts on previously published works. These issues include a range of topics:

  • The meaning of contractual terms for “in print” publications, when a book can be made available digitally or on demand;
  • Derivative rights clauses and media clauses when the parties contemplated only categories such as hard cover, paperback, and trade paperback without regard to digital, audiobook or other repurposing;
  • Non-publishing uses by publishers or other rights holders to scan books in cases where the publisher does not have digital reproduction rights; and
  • The ability of libraries or other owners of particular copies to authorize the digitization of copies when the rights holder cannot be identified – the “orphan works” problem.

The Copyright Office is beginning to grapple with some of these issues, and the concern that is focused most squarely on legal rather than contractual concerns is that of orphan works.

In October 2011, the Copyright Office published “Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document.” The report is framed by the question raised in the Google Books class action litigation which is now in its seventh year:

The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” [And the Supreme Court has] noted that it was Congress’s responsibility to adapt the copyright laws in response to changes in technology.[1]

While the report does not focus exclusively on orphan works, it has led the Copyright Office to begin an “initial notice of inquiry.” The request for comments seeks comments on “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the [orphan works] problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.”

Comments are due by January 4, 2013 and may be submitted online.

In the notice of inquiry, the Copyright Office framed the discussion with this comment:

The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, in recent months, the European Commission has adopted measures that would begin to resolve the issue in certain contexts and a number of foreign governments are reviewing or proposing solutions. The Copyright Office seeks comments regarding the current state of play for orphan works.

As litigation continues in the publishing industry, consolidation of the major publishing houses and retailers transform the business landscape, and digital access reshapes consumer behavior, the orphan works issue will increasingly take a back seat to the economic restructuring of the industry. Nonetheless, the manner in which the Copyright Office, and ultimately Congress, deals with the issue will serve as a harbinger for legislative tolerance of the transforming publishing industry. As such, it is a bell-weather for things to come and an important platform to participate in the policies of publishing fair use.

I expect that on the heels of this debate will come the debate about fair use in the academic publishing environment. The scope of fair use for orphan works may also influence this developing public policy debate on the breadth of access to free or low cost teaching materials and the industry’s need to maintain revenue to develop new works.

The best way to shape both these discussions is to participate. The deadline is January 4th.

[1] Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677 (S.D.N.Y. 2011) (the “Google Books” case) (quoting Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) and Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (citations omitted)); see also Am. Soc’y of Media Photographers, Inc. v. Google Inc., Civil No. 10-2977 (S.D.N.Y.) (companion suit filed by a consortium of visual artists for infringement of visual works in books).