Using Unlicensed Works: Libraries Wary, Content Owners Supportive of New Run at Orphan-Works Legislation

By Louis Trager, Washington Internet Daily

BERKELEY, Calif. -- Representatives of libraries and archives online and beyond expressed skepticism Thursday about any renewal of efforts at enacting federal legislation setting procedures for making use of what are called orphan works -- creations whose copyright owners can't be found readily.  At a symposium of the University of California-Berkeley's law school, executives representing rights holders were more enthusiastic about congressional action. 

Rick Prelinger, who runs the Prelinger Archives of film, said the creativity found on YouTube probably would be "pinched" or worse by any new law.  He warned that it could well help major content owners at the expense of "the 99 percent."  The fair-use doctrine "is a better solution" for those outside big business than anything Congress came up with in runs at legislation, said Kenneth Crews, director of the Columbia University Libraries' Copyright Advisory Office.  He questioned whether "a legislative solution ... is even possible" for the kaleidoscope of situations lumped together as orphan works.

Centralized authority over culture, as envisioned in previous legislative efforts, "is not an American solution," said Brewster Kahle of the Internet Archive.  "I do not think that is the way to go. ... I think we should slow down a little bit and let things evolve."  He promoted a strategy for organizations to build collections, defend against any legal challenges and go through "the sausage maker" of Congress only as a backstop.  Kahle said his experience is that reasonable, noncommercial ventures don't provoke much pushback from rights holders.

The proposed Google Books settlement "didn't go over very well" as an orphan-works solution, acknowledged Allan Adler, vice president of the Association of American Publishers, a party to the settlement.  "Uniform national legislation" is needed to standardize the definition of the "reasonably diligent search" for a copyright holder underpinning reuse of orphan works, he said.  Institutions come up with their own yardsticks now, Adler said.

The diligent-search standard "does make some sense" for enactment in federal law, said Jeremy Williams, the head of Warner Bros. Entertainment's intellectual property department.  But "it's extremely difficult to come up with an objective standard" for an adequate search, he said.  "It is so fact-specific that one despairs."  But "that doesn't mean it can't work," Williams said.  A doctrine like fair use "isn't perfect" and doesn't necessarily produce "predictable results," but that doesn't mean it isn't useful, he said.  Williams said that in any new law, "our failure to exploit a work" and "our failure to respond to a request" for licensing a work shouldn't free others to use it.

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