UC Berkeley Orphan Works Symposium 2012
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BHLE IPR documentation
http://www.law.berkeley.edu/11731.htm
Bianca's Take-Aways for Orphan Works & BHL
- Orphan works are complicated. There is no single "how-to" guide for working with orphan works.
- NHM has developed guidelines for working with orphan works
- Decisions regarding whether or not to digitize an orphan work and make it available via the BHL come down to assessing the level of risk.
- As BHL is not an entity, decisions about digitizing orphan works will need to rest with the institution conducting the scanning.
- There are no standards for performing "diligent search" and there are a variety of resources one can consult.
- Documentation is critical to maintaining a record of the "diligent search" performed.
- Good to remember that the use of an orphan work in BHL's case is for scholarly purposes.
- In the past, and I anticipate for the future, should we discover that an orphan work has been made available erroneously we proceed to immediately remove ("darken") the content from BHL and IA
- So far, we take people on their word should they claim to be a rights holder.
- At least we're only dealing with texts, imagine if we had to handle photographs, images, video, etc.
I. Who wants to make use of orphan works and why?
Speakers:
- Brewster Kale, Internet Archive
- Kenneth D. Crews, Columbia U Libraries
- Eric Schwartz - National Film Preservati on Foundation
- Bruce Hartford, Civil Rights Movement Veterans Website
- Rick Prelinger - Prelinger Archives
Summary:
- new era of digitization is highly distributed and no one size fits all orphan works policy will work
- Not always easy to judge materials as orphan works or not; there are a variety of stakeholders, types and definitions of OWs, legal categories for OWs, and access and usability issues surrounding OWs, see http://www.law.berkeley.edu/files/kenneth_crews.pdf
- "diligent search" requirements don't take into account that there are enormous resource disparities
- think about what's not broken in today's imperfect system
II. Who is concerned about broader access to orphan works and why?
Speakers:
- Victor S. Perlman, American Society of Media Photographers
- Allan Adler, Assoc. of American Publishers
- Jeremy Williams, Warner Brothers Entertainment, Inc.
- June Besek, Columbia Law School
Summary:
- It's about finding the right balance; "information wants to be free so long as its the other guys' information"
- failure to exploit a work should not make it an orphan work, failure to respond to request should not make it an OW
- Extremely difficult to come up with an objective definition of "diligent search", hard to standardize, there isn't even a 1st step; reality of 1st step: "well, we thought about it a lot and figured that we could use it"
- we know fair use isn't perfect but that doesn't mean that it's not useful
- Orphan Works is a risk based decision
- "universal access" - universal doesn't always = free, access doesn't always = use
- diligent searches are going to vary with the type of work/use/user
- goal should be to minimize the number of orphan works via registries, collective licensing models, compulsory licensing models, opt-out models
Keynote: Maria Pallante, Register of Copyrights
- legislative action responds to but does not anticipate tech change; those on the cutting edge of tech highly valued in society; it takes time for people to calm down and get comfortable w/ big ideas
- OW thinking: 2005-2008 based on realization that a diligent search was necessary to reduce nos. of orphans
- OW thinking: 2008-present based on realization that a search that is simple and inexpensive but isn't necessarily diligent, might attract more users and benefit authors?
- change must be necessary, fair & practical; should we start small? non-commercial, used by LAMS, not photographs
- practical is debatable
- resetting relationships b/w libraries & publishers requires oversight & legislation from congress
- in public interest to protect copyright owners
- opt out may be suitable in some cases
- (C) office should be able to help determine what constitutes a diligent search and what's worth the effort
- © registry dbase would be huge for facilitating this and yes, it is a priority
III. What is the best approach to addressing the orphan works problem?
Speakers:
- James Grimmelmann, NY Law School
- Randal Picker, U of Chicago Law School
- Ariel Katz, U Toronto Law
- Stef Van Gompel, U of Amsterdam
- Jennifer Urban, Berkeley Law
- Lydia Loren, Lewis & Clark Law
Summary:
- OW licensing regime ==> decision tree relative to how remembered the work will be…; need a discovery regime for OW, scheme which incentivizes people to do this
- Copyright based on market logic; underlying purpose of copyright to facilitate interactions b/w owners & users but extended collective licensing does not facilitate this relationship; solution = "remedy tweaking" ==>after finding infringement, locate-ability of the owner should be a relevant consideration; law should create incentives shifting risks of using OW from the user to the owner
- the nature of the work is relative to the incentives ==> should have influence on policy; an orphan work represents a complete market failure, one side of the transaction is unknown and thus the exchange is impossible can we create a market to complete the loop? See also, http://www.law.berkeley.edu/files/Urban.pdf
- "orphan works" metaphor does not work ==> should be "hostage works" = works that are held hostage around our (c) system; we need special forces to free the works from our system, see http://www.law.berkeley.edu/files/lydia_loren.pdf
- an issue of wasted works, like abandoned houses, penalize neglecting owner; reward revitalizer; we have rules for designating new owners of the property if the property has positive value; if negative value, i.e. garbage...then we incentivize the clean-up of the waste
- Freeing hostages: freedom = information, reliable and authoritative; information, this is not costless; eliminate monetary liability for an entity that 1) is NOT negligent in diligent search and keeps documentation as such AND 2) provides work via open access, seehttp://law.lclark.edu/live/files/10935-hostage-works-landc-verpdf
IV. What role should registries play in averting orphan work problems? What mechanisms will facilitate information sharing and which works are public domain, orphan works, or open access?
Speakers:
- Piero Attanasio, ARROW (EU Rights Infrastructure)
- Jule Sigall, Microsoft Corp.
- Bruce Nash, Nash Info. Services
Summary:
- Registries are 2 steps ahead of where we are now; you have to start w/ information, then you create a database, then you can have a registry
- let users create registries, share and you shall receive, need decentralized system for approving registries
- In EU, ARROW = tool to facilitate rights information management in any digitisation project involving text and image based works. Infrastructure allows streamlining the process of identification of authors, publishers and other rightholders of a work, including whether it is orphan, in or out of copyright or if it is still commercially available. See, http://www.law.berkeley.edu/files/Attanasio.pdf
- Bruce Nash, mathematician claims that you can measure economic relationships via creative social graphs; what about adding rights holders into this social graphing process to help automate the diligent search process?
V. Who wants to do mass digitization and why?
Speakers:
- Hal Varian, UC Berkeley
- Lucie Guibault, U of Amsterdam
- Frederic Haber, Copyright Clearance Center
- Joe Karaganis, American Assembly, Columbia U
Summary:
- think more about clearing houses vs. registries
- Europeana allows metadata to be used w/out restriction; data exchange agreement (DEA) based on Creative Commons 0 license (CC0); big problem in dealing w/ cross-border exchange of content, now message says: "not available in your area"
- metadata comes in every different flavor, color, smell and it's the Copyright Clearance Center's job to try and manage this, but can't force people to participate - hoping that we'll go back to our home organizations and encourage participation; designed to handle lots of small, low-value works, with lots of rights holders, & lots of users; extended collective licensing works in small homogeneous countries but not necessarily US...
- piracy and market structure -- cheap technology, low incomes, high prices; piracy plays a cultural diversity and access role; how does mass digitization happen within these channels - DIY book scanning; just a matter of time when most books will be available in digital form in the "shadow library"; what happens over the next few years as digital readers become more prevalent and cheaper
VI. Should data mining and other non-consumptive uses of in-copyright digital works be permissible and why?
Speakers:
- Matthew Sag, Loyola Chicago Law
- Jerome Reichman, Duke Law School
- John Unsworth, Brandeis U
- Matthew Jockers, Stanford U
Summary:
- Yes
- stop saying "non-consumptive" and use "non expressive", i.e. metadata analysis does not actively express the work; metadata is not substantially similar to the underlying work
- UMich has done a decent job of trying to address OW issue despite recent litigation
- Many examples: data analysis on text to understand stylistic "fingerprint" and topic modeling of works; understand across all features how one book is similar to another book; can use this analysis as a proxy measure of influence, using Euclidean metric http://en.wikipedia.org/wiki/Euclidean_distance to assess "distance" b/w books
Erin Rushing's Summary
Berkeley Orphan Works Symposium. Berkeley, California. April 12-13th, 2012.
Hosted by the Berkeley Digital Copyright Project, this two day conference brought together many leading experts in the field of copyright. This year’s theme was “Orphan Works & Mass Digitization: Obstacles & Opportunities”, so it was very relevant to the library world, especially SIL. The keynote was delivered by Maria Pallante, register of copyrights . Although the symposium didn’t end with a set of best practices or a concrete plan for moving forward, it was a good reminder of just how big, and complicated, a problem orphan works can be for digitization.
It was interesting to see so many sides of the orphan works issue presented. A few common themes that arose were that a) the system is flawed and does not current benefit anyone, b) different people/groups are comfortable with different levels of risk and c) there is no clear definition of a “diligent search”.
There was disagreement in what the next steps should be. Brewster Kahle of the Internet Archive suggested that it should be more of a community effort, with both libraries and publishers coming together and that essentially libraries should digitize things they think are low risk and develop a mechanism for dealing with people who are upset. Allan Adler, Association of American Publishers, believes legislation is still necessary, particularly when it comes to a definition of diligent search. June Besek of Columbia Law School suggested various uses of registries and collective licensing. I think the most interesting idea came from Lydia Loren of Lewis & Clark Law School. She suggested that orphan works should be treated as abandoned property, with similar benefits to those who come along and maintain/re-use it.
It was also clear that what works for text, probably won’t work for photos or other media. A text-based registry would do little good when attempting to locate the creator of a photo with minimal provenance information. Videos are even more layered in their copyright. However, Rick Prelinger, Prelinger Archives, digitizes many orphan work videos though the Internet Archive and says he has never received a single authentic copyright claim.
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