Digital (on line) libraries: problems with orphan works and works out of print.

Possible solutions

Dr. Titiriga Remus

An orphan work is a copyrighted work for which is difficult or impossible to contact the copyright holder. Almost any work for which a reasonable effort to locate the current copyright owner fails, can be considered orphaned. Because the cost of finding the owner is very high, creators can't build on orphan works, even when they are willing to pay to use them. The out-of-print works are copyrighted works not commercially available, as declared by the appropriate right holders, regardless of the existence of tangible copies of the work as normally understood. Both of this category pose a number of specific problems related to the balance between the protection of the rights of the authors (or in general the copyright owners) and the access of public to original creations (landmark of all copyright law). The former manifestation of the copyright questions (the orphan book) was more closely examined by the practice and doctrine than the questions relating to out-ofprint works. It is the main reason to focus on orphan works solutions, but only after a short overview of solutions for out-of-print works.

I. Aspects regarding out-of-print works The Interim Report of 16 October 2006 from the Copyright Subgroup of the i2010 Digital Libraries High Level Expert Group (a think tank focusing on copyright matters) concluded unanimously that a solution is required to facilitate the digitisation and the making available of out-of-print works by libraries. The Copyright Subgroup further agreed on a solution which was recommended to the European Commission and the High Level Expert Group at its meeting on 17 October 2006. This solution was based on four main elements: (1) A model licence. The licence grants the library a non-exclusive and non-transferable right to digitise and make the licensed work available to users in closed networks. The right holder is entitled to payment which (s)he is at liberty to waive. The pertinent author/publisher retains copyright in the work and in the digitised version and may at any time revoke the licence, inter alia to re commercialise it. The author/publisher may require information from the library on the use of the work to better assess its commercial potential. If the licensor withdraws from the library any

part of the licensed material and the material withdrawn represents more than 10% of a title, the library is entitled to a reimbursement of its costs. (2) The establishment of a database of out-of-print works. (3) A joint clearance centre (JCC). JCC may be a not-for-profit organization that provides content licensing services worldwide to those that create and use content. Corporations, universities, law firms and government agencies may purchase licenses from JCC for the rights to use and share published material. (4) A procedure to clear rights. JCC may collects and then distributes royalties to copyright holders.

As a mater of fact no fundamental steps were realised in this direction at the European level.

II. National solutions regarding orphan works

The orphan works problem occur in the United States with the revision of the Copyright Act in 1976, which abolished the need to register copyrighted works, declaring instead that all "original works of authorship fixed in any tangible medium of expression" fall into copyright status. The abolition of registration removes a central recording location to track and identify copyrightholders. Also, the 1976 Act changed the basic term of copyright from a number of fixed years from publication to the term of life of the author plus 50 (now 70) years. The requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated. These changes were imposed by United States accession to Berne Convention, which prohibits formalities like registration and renewal as a condition for the gratification and exercise of copyright. These changes worsen also the problem of orphan works: a potential user generally must assume that a work one wishes to use is subject to copyright protection. As a matter of fact without the Copyright Office's renewal registration records, it cannot be establish for sure whether the work is still copyrighted or in the public domain. In January 2006, the United States Copyright Office released a report on orphan works. The Copyright office has recommended a new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search. The user must perform a reasonably diligent search and must have been unable to locate the right holder. 2

At the legislative level the future of orphan works was left unsettled when the Orphan Works Act of 2008, which passed in the U.S. Senate, failed to pass the committee in the House of Representatives. The bill would have enabled individuals or entities to use orphan work material under certain terms, given they made a diligent attempt to first find the rightful owner. Canada has created a licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of a locatable copyright owner, after the prospective licensor has made reasonable efforts to locate the owner of the copyright". The user should make an application to the Copyright Board of Canada. The user shall first contact, for example, the following: collecting societies, publishing houses, the internet, libraries, universities, museums, Provincial Departments of Education, and in case of a dead author, the heirs. So, this regime is equally based on a standard (the user had to perform reasonable effort to locate the copyright owner of a published work). The Copyright Board being involved in each case, the quality of the search is controlled. As of August 2008, the Board had issued 226 such licenses, and denied 7 applications. The Nordic countries model consists of an extended collective license for orphan works. In the UK the Gowers Review of Intellectual Property of December 2006, includes a recommendation for solving the problems posed by orphan works. The proposed recommendation is based, once more, on the notion of reasonable search. It is recommended that the Patent Office works with groups of rights holders, collecting societies, libraries and archives to establish clear guidelines for reasonable search. The report states that reasonable search will vary by medium, such as music, literature, film. A voluntary register is equally considered. Some other Europeans proposed different solutions for handling orphan works such as: - changing copyright legislation; -developing better tools for locating right owners; -making a common European code for dealing with this type of material; -a reserve fund is equally suggested to compensate authors if they are found after all. Some solutions went even further: by making orphan works generally useable until a copyright holder opposes (eventually after a certain period a work has been advertised as an orphan work), or by creating a legal safe haven for people using orphan works. In any case, the absence of an overview for orphan works is seen as a very serious problem. -Up-to-date databases of orphan material seem necessary. For running these databases the public could be involved, as well as the collecting societies.

-The attention is drawn to the need to prevent a further extension of the orphan works domain: proposed solutions range from expanding the public domain (e.g. by reducing the term of protection) to the use of technical mechanisms for identification of the owner and the object.

III. Solutions for orphan works at European Union level The European Commission elaborated a report on Digital Preservation of Orphan Works and Outof-Print Works (The recasting of Copyright and Related Rights for the Knowledge Economy). The Report was released in November 2006. Chapter 5 deals with Rights clearance issues relevant to the reutilization of existing works: multiple ownership and orphan works. Proposals on orphan works include the following: -the Member States are supposed to introduce a system whereby a prospective bona fide user, after a reasonably conducted inquiry, may apply to a public authority to obtain a licence to use an orphan work; - if a system as proposed above would be introduced at Member State level, it would be commendable if this system would complemented by appropriate measures at EU level that attend to the licensing difficulties that may occur in case of a cross-border exploitations of orphan works; - some supportive measures may be taken to stimulate the supply to the public of copyright ownership information or rights management information. On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and right-holders signed a Memorandum of Understanding, proposing an orphan works legislation supported by rights-holders. However, no other steps in this direction were yet accomplished.

IV. The overwhelming solution of Google (regarding only the digitization of books) Google's mission statement is "to organize the world's information and make it universally acceptable and useable". It has digitized more than seven million books to implement its service of Google books. At first, Google and the libraries concerned said they would only scan works in the public domain. Then they agreed to include out-of-print works. In the beginning only books with US copyrights would have been affected. Now Google admits that they are prepared to scan virtually every book published before 2009. A group representing publishers and authors filed a class-action lawsuit against Google in 2005 to the Federal District Court of the Southern District of New York on behalf of their members. The plaintiffs included The Authors Guild (and individual authors) and the Association of American Publishers (which includes The McGraw-Hill Companies, Pearson, John Wiley & Sons, and Simon & Schuster). The lawsuit claimed that Googles practice of showing snippets of copyrighted books 4

in search results was copyright infringement. Google insisted that it was protected by fair use provisions of copyright law. After tree years the two parties arrived to a settlement. Subject to a final court approval (postponed recently till the 5 of October 2009), the settlement calls for Google to pay $125 million to litigants and to establish some novel services and distribution mechanisms for the future. Google gets the risk-free ability to scan, index, and in many cases, post portions of pretty much every book which has gone into U.S. Copyright. According to the settlement agreement the public domain content would continue to be treated as it is today. Users would be able to download items or read them online at will. However, the use of in-copyright material would change significantly. More many changes concern the orphan works. The settlement would do two main things, one for the availability of orphan works and one for the rights holders and those who want to license the works they control. First, it would give Google the ability to safely offer these works to the public, both in searchable form and as full, purchasable copies. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. Second, it creates the Books Right Registry (or BRR) to be operated by a non profit corporation which will be governed by a board comprised of publishers and authors. The corporation will administer the payments to authors and publishers that flow from the agreement. It gives authors a place to go and identify themselves and then receive compensation for Googles use of their books, including a portion of purchase and ad revenues. The creation of a BRR provides a way for authors to un-orphan their books and to receive compensation, and a way for users to locate previously-unknown rights holders and obtain the rights to use those works. It also provides a financial encouragement for those authors to come forward, as they will receive the compensation that the BRR has collected on their behalf. However there is more than that. Under the agreement, public libraries would receive limited access to the full text of in-copyright, out-of-print books (plus public domain, of course) for free. The public library would have to dedicate a computer to the Google Book Search content. The agreement specifies that the offer extends to each library building; branches could have their own dedicated computers. With the help of a major player (like Google) and through a bottom-up and a step by step approach a private entity may succeed while the governmental initiatives have all failed.