Keeping It Simple, or How to Solve the Berne Problem, Part 2

By Kevin Smith, Scholarly Communications @ Duke

My first post about the Berkeley orphan works conference focused on what we had done to create the massive orphan works problem we now face, and what mistakes we should avoid in the future as we try to solve it.  Now I get to be a little more positive and discuss some of the suggestions I heard (all of the PowerPoints are now available) for solving the problem that seem quite workable.  The overarching theme, I think, is keep it simple; rely on small legislative changes or solutions that can be implemented at the trial court level, rather than on big ideas.

Perhaps the foundational presentation focusing on a simple approach was from Jennifer Urban, one of the Directors of the Samuelson Law, Technology and Policy Clinic, who simply laid out the argument that use of orphan works most often will be fair use.  Her principal innovation in the fair use analysis was that it should begin, in this case at least, with looking at the second fair use factor, the nature of the original work being used.  The second fair use factor is not often asked to do much work, in my opinion, and attentive readers of this blog will know that I have suggested before that more emphasis be put there in regard to academic works.  Professor Urban’s argument about orphan works focused on the second factor for a similar reason — by starting there we could more clearly focus on the incentives for creation of a particular type of work and understand that there is no incentive to be gained for the creator or publisher of a true orphan work by charging a toll for use.  Indeed, Urban moved from the second to the fourth factor, an easy transition in this argument, and pointed out that an orphan work represents a complete “market failure” in which the economic impact factor clearly favors fair use.  So the simplest solution to the orphan works (or Berne) problem is just to recognize that the tools to facilitate beneficial uses of orphans already exist in U.S. law.