Going Big: Copyright Office Chief Promises to Have Orphan, Library Proposals Ready for New Congress

By Louis Trager, Washington Internet Daily

BERKELEY, Calif. -- Coming U.S. Copyright Office recommendations to enact a law about the use of works whose rights holders haven't been found, and to reframe copyright exceptions for libraries, will greet the next Congress when it starts, the head of the agency said.  "We have already begun to convene meetings on these topics and will have specific recommendations to revise" Copyright Act Section 108 about libraries "and enact orphans legislation for the new Congress in January," said Maria Pallante, the register of copyrights.  "We are discussing and will continue to advise them on collective licensing and the relative merits of both opt-in and opt-out solutions" for rights holders.  She signaled that her office will go big in its suggestions.

"Resetting the relationship between copyright owners and libraries requires both oversight and legislation from Congress" about orphan works and libraries, "and to explore new forms of licensing," Pallante said late Thursday at a symposium of the University of California-Berkeley's law school.  "Why?  Because it's in the public interest to both protect owners and ensure the future of libraries.  It may well be that an opt-out system is the most sensible solution in some cases, but those cases require scrutiny and compromise to ensure that authors are not undercut and that library projects are responsible."  Earlier speakers at the event from Warner Bros. and the book-publishing industry had endorsed the passage of orphan-works legislation, but representatives of the Internet Archive and other collections resisted the idea (WID April 13 p3).

Pallante rejected the idea that "we should start small" regarding orphans, by limiting "the types of works -- exclude photographs, for example -- ... the types of users -- museums, libraries and archives -- and the type of use -- noncommercial only."  She called these "worthy suggestions" but added, "I don't love them because they don't reflect the practice of copyright."

There's a question about how much copyright owners should be required to "assert their whereabouts" to establish their rights or at least to affect the extent of "remedies they receive," Pallante said.  Historically some right holders contended, "either on principle or out of sheer frustration, that they were entitled to full remedies under the law ... and had no duty to would-be users, even as a practical matter," she said.  "I believe over time this premise has shifted greatly.  Big ideas have a way of bringing people along."

Pallante said she has set as one of her "key priorities" making the Copyright Office database searchable by automated means as well as by Web browser or otherwise.  She said she agrees entirely with a 2005 comment by Google that, in the company's words, this resource "would serve as a platform upon which to rest any number of legislative or regulatory improvements to the copyright system."  But "it will take funding and a multiyear strategy, as well as a commitment from Congress," Pallante said.  An office project to this end "is co-chaired by leaders from our information-technology department, general counsel's office and registration program," she said.  "And we will engage technical and legal experts in a number of ways before releasing our vision to Congress and the public in the next 18 months."

Orphan-works efforts in the coming 113th Congress would pick up where legislative pushes in the 109th and 110th fizzled.  "In 2006, the Copyright Office delivered a major study to Congress" about orphan works that "proposed limiting the remedies a copyright owner might obtain against one who has failed to identify or locate the copyright owner after conducting a reasonable, diligent search," said an October paper from the agency setting out its priorities and projects for the following two years.  The work "stalled after the parties to litigation involving the Google Book Search program announced a proposed settlement agreement in part because it had implications for orphan books," the paper said.  "However, in 2011 the court rejected an amended version of the settlement, expressly ruling that the disposition of orphan works belongs with Congress, not the courts."

Reproduced by permission of Warren Communications News, Inc., 800-771-9202, www.warren-news.com