Associate Professor Matthew Sag, Loyola University of Chicago School of Law Slides available at

The orphan works problem Use of copyrighted works is not intrinsically harmful Cost of getting permission > value of use > 0 – Copyright status uncertain – Author/publisher contracts unclear, private/public records faulty, interests pass by contract, will, intestacy, merger, sale, bankruptcy, … Cost of use without permission > value of use > 0 – Threat of attorney fees, statutory damages, class actions! 2

Is there still an Orphan Works Problem? Judge Baer in Authors Guild v. HathiTrust Print-Disabled Access Search Computational analysis e.g. text mining –I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA. 3

Copyright & Non-Expressive Use Copyright law does not prevent library digitization for the purpose of non-expressive use. See my previous work, e.g. Copyright and Copy-Reliant Technology (2009) Copyright and Copy-Reliant Technology Orphan Works as Grist for the Data Mill (2012) Orphan Works as Grist for the Data Mill Digital Archives: Dont Let Copyright Block Data Mining* 490 Nature (October 4, 2012) Digital Archives: Dont Let Copyright Block Data Mining Digital Humanities amicus brief in Authors Guild v. HathiTrust, and __ v. Google* Digital Humanities amicus brief District Judge Harold Baer, Jr., decision in Authors Guild v. HathiTrustHarold BaerAuthors Guild v. HathiTrust 4 * with Matthew Jockers and Jason Schultz

Digitization and Computational Freedom The importance of search and disabled access are self- evident. What about the Digital Humanities? Discovery of new works Observation of patterns Study literature in broader context 5

Google Ngram Visualization Comparing Frequency of The United States is to The United States are 6 As cited in Authors Guild v. HathiTrust 2012

7 American Slavery in American, English, and Irish Literature, Matthew Jockers, Macroanalysis: Digital Methods for Literary History (forthcoming February 2013) Proportion of Irish Literature with a topic ofslavery spikes ~

Yes, There is still an orphan works problem 8

The Copyright Offices Renewed Interest in Orphan Works – Some Concerns (1) Case law has unblocked some of the most significant orphan works issues (ADA, Non-expressive use, Search) – Proposed solutions to the orphan works problem might be a retrograde step – See Jennifer Urban for a discussion of why an orphan works program may be fair use. The fair use solution is obscured by talk of ECL and statutory fixes. 9

(2) The use of copyrighted works is not malum in se –Solutions that focus on preventing/taxing use without corresponding tangible benefits to rights holders make no sense. (Ariel Katz has much to say on this) (3) Collective licensing and compulsory licensing are difficult to get right – See generally, Peter DiCola & Matthew Sag An Information- Gathering Approach to Copyright Policy 2012.An Information- Gathering Approach to Copyright Policy 10

Would a compulsory license for expressive use of orphan works actually work? Three Questions Who receives compensation? For what uses? At what price or under what price-setting mechanism? 11

Who receives compensation? Copyright owners Author or publisher? Rough & ready division as in the Google Book Search ASA? Arbitration system to quickly settle issues? What to do with unclaimed funds? A tax on reading is not a virtue of it self Moral hazard for collection agency 12

For what uses? Should we roll-back current fair uses? E.g. digitization for search, non-expressive uses in general, print-disabled access? Should we raise a levy on things that might be fair use? Transaction cost fair uses Positive spill-over fair uses Use outside proper scope of copyright monopoly fair uses – non-profit, educational, private study, Should we limit to things hard to justify as fair use? 20% previews, full-access, ebook? 13

At what price/price-setting mechanism? Fixed fee as in the cover license Congress, Copyright Office, Magic 8-Ball? If you propose a complex arbitration proceeding as in Webcasting, you need a decision standard Willing-buyer, willing-seller –> arbitrary results. – There is no market for permissions in orphan works – Ignores public interest in improved access library collections – Ignores public interest in public domain works likely to be mistaken as orphan works. Reasonable expectations, Investment backed expectations, Fair remuneration, Fair profit-sharing? Public interest? 14

Adversarial rate-setting process? Relies on the parties for information – but orphan works rights holders are not parties! Favors incumbents with institutional expertise Agree or arbitrate framework Would be even more insane in the orphan works context than in webcasting No representation of the public interest The court in Authors Guild v Google rejected private agreement in the form of the ASA for good reasons. Why trust private agreement in an arbitration context? 15

My Broader Concern Many proposed solutions will be overly centralizing Leading to either log-jam or capture in the Copyright Office, or A collective rights organization monopoly power and no regard for the public interest We need decentralizing solutions! 16

17 Collective licensing sorts out and creates standardization Roy Kaufman, Copyright Clearance Center at the In Re Books Conference on Friday License Some rights reserved by ndrwfggSome rights reservedndrwfgg License Some rights reserved by FordanSome rights reservedFordan

18 Terrestrial radio simulcasts, Pandora Apple, Spotify Before the Digital Audio Transmission right Emerging experimental ecosystem After 3 different arbitrations and 6? Legislative reboots

Real Orphan Works Reform De-Orphaning Digitizing records Legal decision-making tools, e.g. Elizabeth Townsend-Gards Durationator project For the Orphans that remain, most Proposals aimed at the first half of the Problem Cost of getting permission > value of use > 0 19

Real orphan works reform would focus on the second half of the orphan works problem Cost of use without permission > value of use > 0 No attorney fees, statutory damages, for good faith use No class actions against good faith use Broad definition of good faith commercial, reasonable effort to locate RH and determine whether use would be approved Presumption in favor of use for works published between 1923 and 1977 unless the rights holder notifies the Copyright Office to the contrary Presumption in favor of use for unpublished works if the author is unknown or deceased. 20