Congress’ ongoing review of the Copyright Act continued Wednesday when the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet convened a hearing on “preservation and reuse of copyrighted works”

Committee chairman Howard Coble (R-NC) began the hearing with a nod to his love for bluegrass music—a genre he acknowledged has limited commercial potential in the contemporary marketplace, but remains an invaluable part of America’s cultural history.  It’s actually a pretty good example of what’s at stake in these debates, particularly with orphan works.

Remember, orphan works are copyrighted works whose owners are hard to find or locate.  As we say in our handy factsheet:

They belong to someone, but it’s hard to tell to whom. Many creative works fall into this category because (a) corporate sales, mergers and consolidations make it difficult to track ownership, (b) copyright protection now begins automatically upon creation, and (c) the length of copyright terms is longer than in previous eras. Because copyright owners, and not creators, have the right to license new uses of their works, many works become orphaned when the corporate copyright holder is not identifiable/locatable, even if the creator is locatable.

For music especially, orphan works present a challenge.  What happens when records go out of print and labels go under?  How can we make sure that music is preserved? How can we make it accessible to the public? And how can we try and make sure the original creators are fairly compensated, and ideally, included in decisions about what new uses are permissible?

The US Copyright Office began an effort to study the orphan works problem in 2005 and made recommendations to Congress in 2006, resulting in a 2008 bill that ultimately stalled in the house. Given how much conversation has already taken place about orphan works, and the Copyright Office’s current efforts to revisit the topic, Chairman Coble expressed his wishes that this hearing would be able to cover different ground. Indeed, recent controversies over mass digitization (most notably Google Books and HathoTrust) took up much of the hearing.

First to testify was Gregory Lukow, who heads up the Library of Congress’s audio/visual conservation efforts at the Packard Campus in Culpepper VA.  After showing a brief video depicting the Packard Campus’s activities, Lukow gave an overview of the LoC’s preservation goals.

Lukow called for the issue of orphan works to be explicitly addressed in legislation, but noted that the Library’s preservation concerns extended beyond orphan works to what he termed “marketplace orphans,”  still- copyrighted film and recording industry collections not accessible to the general public.  As Lukow explained, though “’marketplace orphans’ have little or no commercial value to their rights holders, many are of great historic, cultural or aesthetic value to researchers, educators, and the general public.” 

Libraries and archives are granted certain exemptions from copyright law to help enable the sort of important preservation work that Lukow’s team engages in.  Section 108 of the Copyright Act enumerates these exemptions, and certain conditions that must be followed. However, Section 108 was written before digital sound and video technology was popularized, and Lukow argued that the language needed updating for new technologies.  Additionally, Lukow called for changes to section 108(c): 

“Subsection 108(c), which was designed to help libraries and archives preserve their materials, in reality only allows these institutions to preserve materials already damaged or in a state of deterioration. In order to preserve fragile, at-risk audiovisual materials, the Library must be able to legally make copies of materials before they are damaged or deteriorating. 

This seems pretty sensible: it needs to be legal for conservationists to make legal copies of out-of-print recordings to more durable digital formats before the analog tape starts to degrade and shed oxide or the lacquer 78 starts to crack, regardless of who owns the rights.

Additionally, Lukow called for federalization of pre-1972 sound recordings.  As he testified, “Thanks to quirks in the development of U.S. copyright law, these works have never been brought under federal copyright protection.” This creates problems relating to archiving, preservation, and access when works are subject to varying state laws. The easiest solution may be to give recordings from before ’72 the same protection as works after ’72 so everything can be treated the same.

Interestingly, when you look at Lukow’s recommendations as a whole, you may notice that his position is highly nuanced, calling for contracting copyright in some cases by carving out more exemptions on one hand, but simultaneously calling for the expansion of federal copyright to pre-’72 sound recordings on the other hand. It’s a pragmatic, non-ideological position.

As it turns out, just as musicians are not uniformly of one mind on many issues, different librarians can also come to different conclusions on how best to achieve preservation goals.  James Neal of Columbia University argued that libraries could use “fair use” to justify a wide range of preservation activities so section 108 really didn’t need updating. Furthermore, he contended that recent legal developments meant that libraries no longer need orphan works legislation, again largely because calling libraries’ use of orphan works “fair use” was now on firmer legal ground.

Still, attorney Richard Rudick, who served on the Copyright Office’s Section 108 Study Group found this unsatisfying, saying “We have to do what’s right for the American people” rather than relying on whatever legal argument happens to be currently ascendant in the courts. He argued that this meant a judicious update of 108.

While it was great to hear about the vital work that libraries do on preservation (we particularly enjoyed Lukow’s nifty video of robots operating VCRs), we would have liked to hear more about smaller-scale operators doing preservation work in the private sector.  In particular, we would have liked to have heard some mention of the utterly heroic efforts of independent labels in preserving important parts of our collective musical heritage that might otherwise be lost, and in making this heritage available to the public. While sections 107 and 108 carve out exemptions in copyright law that create tools for libraries doing preservation work, these tools are certainly less helpful to reissue labels. It would be interesting to hear what kinds of registries, processes, and policy tweaks might help these labels in their preservation efforts while also making it easier to track down and compensate artists.

In some ways, opinions seemed to differ based on what kinds of media were being invoked.  Representing the Authors Guild, Jan Constantine claimed that the orphan works problem was overstated, at least for books.  In contrast, Michael Donaldson, representing documentarians and independent filmmakers, made a compelling case that orphan works legislation was desperately needed to allow the reuse of older material in new films when original copyright owners could not be found. This led to an interesting line of questioning from Rep. Zoe Lofgren (D-CA): If the concerns about orphan works differ from medium to medium, would it make sense to address different kinds of media separately? Responses were varied.

In any case, the orphan works issue isn’t going away. The Copyright Office is once again soliciting a round of comments and feedback. This input could inform a Copyright Office report which, in turn, could result in another attempt at orphan works legistlation. We’d encourage all stakeholders, especially artists and independent labels, to use this opportunity to make their voices heard.

Photo: Packard Campus, Library of Congress by Bob Bieberdorf