©ollectanea

A consortium of publishers announced this week that it had agreed upon a safe harbor for users of orphan works. The press release was reported widely (see, for example, the Law Librarian's Blog). Although the press release did not include a link to the actual safe harbor rules, they were easy to find on the Websites of the participating publishers. I read them and thought to myself as I did, that they were similar in some ways to the legislation that failed to pass last year here in the U.S. They were much simpler overall, leaving out many of the refinements that the bill had, such as rules for nonprofits that allowed take-down in lieu of payment of a royalty and continued use. After all, these publishers are not proposing law, so they don't have to consider the needs of all stakeholders. What is it exactly that they are proposing, or in fact, is this a proposal at all, or a done deal with users of their works?

These publishers are pursuing a strategy that is becoming more common these days. Rather than attempt to amend copyright law to address the horrible situation we have gotten ourselves into with our century-long terms, broad and deep rights, narrowly tailored (in some cases to the point of uselessness) exemptions, no easy way to opt out of it all, or to find owners, they advocate "letting the market take care of it," one publisher at a time. It might sound daunting, especially to someone who wants to use orphan works (think of all the questions you have to ask yourself about all the different publishers' different standards, and which publishers have no agreements with "the public" at all, etc.), but this is more or less the strategy Lessig pursued when he created the Creative Commons after he recognized that there would never be a legislative or court-imposed resolution to the problems created by repeated lengthening of the copyright term. Both of these actions (Lessig's and the publishers') evidence a recognition that relying on lawmakers and courts to "fix" the problems with copyright is not going to work in some cases. So we turn to contract instead. Lessig might have thought that fixing outrageously long terms and the over-protective scope of copyright, one creator at a time, would be a daunting task, but it was the only thing that showed any promise at all of ever working. And it has worked -- quite well. To be fair, I don't think he's given up entirely on law, but, then again, perhaps he has.

Anyway, for these publishers, it's a plan. Their deal goes something like this: "If you use a work that you think is an orphan, but it turns out the work belongs to one of us and we figure that out, we promise not to take your first born child; rather, we'll just charge you what we would have charged you if you'd come to us in the first place. In return for this forbearance on our parts, we expect that you'll diligently search for us, and here's what we think a diligent search includes:

*** in virtually all cases searches and reviews must be conducted of these kinds of resources identified generically as:

• Published indexes of published material relevant for the publication type and subject matter; • Indexes and catalogs from library holdings and collections; • Sources that identify changes in ownership of publishing houses and publications (see below comment on imprints) including from local reprographic rights organizations; • Biographical resources for authors; • Searches of recent relevant literature to determine if the citation to the underlying work has been updated by other users or authors; • Relevant business or personal directories or search engine searches of businesses or persons; and • Sources on the history of relevant publishing houses or scientific, technical or medical disciplines.

Additionally, where the user can identify a prior publisher that appears to be out of business, the list of imprints available from this [link] should be consulted immediately prior to each use.

The [link] referenced above is not a live link, but it is reported to be "a list of journal publisher imprints that the associations have compiled."

So what are we to make of this deal we're being offered (and the strategy in general)? I must assume that the publishers know what they are talking about in their bulleted list of things we have to do, so arguably publishers will not have a difficult time figuring out what a reasonable search involves. But me? I am clueless. The only thing I recognize in the long list is the library catalog (but which catalog?). I'm sure the publishers all sat around together and agreed that they could handle this. I wonder if they had someone like me at their table? Or librarians. I asked my friend, Lexie (a librarian) if she knew what the bullets were about. She hasn't gotten back to me yet, but she will.

In the meantime, I invite you to think about what these requirements mean. Examples would be helpful. I'll try to suspend judgment until I've gotten a better idea of what's involved here, but I'm pretty sure this "reasonably diligent" search requirement is not going to light a fire under very many potential users of orphan works. Because, it's not just the "what we have to do" part of the bargain that looks like it might not be such a good deal, but the other side, the "and here's what we'll give you in return" part isn't looking so hot either.

For commercial uses, the reasonable royalty is probably fine. But for nonprofit libraries, archives, museums, etc., no. If we did our reasonable search and couldn't find you, and you surface at some point, we need to be able to oblige your desire to send your work back into the dark for you, but not to pay you.

The other problem I mentioned earlier is that we now know what a reasonable search looks like to these guys:

American Chemical Society
American Institute of Physics
BMJ Publishing Group Ltd
Börsenverein des Deutschen Buchhandels e.V.
Elsevier
Institute of Physics
John Wiley & Sons (including Blackwell)
Oxford University Press journals
Portland Press Limited
Royal Society of Chemistry
SAGE Publications
Springer Science+Business Media
Taylor & Francis

I wonder which other publishers are going to sign on; which ones will say nothing; which ones will come up with different standards. And how that landscape will or *will not* encourage the responsible use of orphan works.

Well, that's it for now. We all need to think about this. Orphan works are one of the biggest challenges we face today. These are works that are destined never to see the light of digital day unless we find a way to get them online while making reasonable efforts to protect the interests of their owners. The time when obscurity was the only option for non-economically viable works is over. We need to find ways to get on with it. Are these publishers on to something, or are they living in a dream world where all potential users have the kinds of knowledge and resources they do to dig deeply into the history of everyone who ever wrote something that's orphaned today? My really cynical side thinks that maybe that's the idea -- only other publishers will be able to take advantage of this deal, which would make it amount to no more than professional courtesy.