February 17, 2018

Lessig: In Google Settlement, Orphan Works the Big Loser?

As LJ reported throughout September, the library community and its allies came close to getting a long sought after orphan works bill through Congress—earning passage in the Senate, before stalling at the feet of the “dark archive” proponents in the House. While Association of Research Libraries (ARL) associate executive director Prue Adler has said she hoped the Senate bill would be picked up and the orphan works process re-started in the next Congress, could the recent Google settlement complicate, or help that battle?

“The biggest loser in this whole battle is the Orphan Works legislation,” noted Stanford University professor Lawrence Lessig, who opined against the bill, last year in a New York Times article. “If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of orphan works, this is the evidence,” Lessig blogged. “Let’s let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to orphan works.”

In its release on the settlement, Google suggested that the settlement would help address the orphan works problem: “We think the Registry will help address the orphan works problem for books in the U.S., making it easier for people who want to use older books. Since the Book Rights Registry will also be responsible for distributing the money Google collects to authors and publishers, there will be a strong incentive for rightsholders to come forward and claim their works.”

Ironically, both Google and the Association of American Publishers disagree with Lessig on the orphan works bill and are strong supporters of the legislation. In addition, while the Google settlement offers incentives for copyright owners to come forward, that is meaningless for the millions of works truly orphaned, not just books, works that have no clear copyright owner, nor does it ease the potential for incurring damages currently blocking any use of these works.

“This settlement only deals with a tiny slice of the orphan works problem, published books.  It does not address photographs, illustrations, musical compositions, and unpublished works such as letters,” noted attorney Jonathan Band. “Accordingly, orphan works legislation remains of critical importance to cultural institutions such as libraries, archives, museums, and public broadcasters.”