On Extended Collective Licensing

November 17, 2015

Written by Mike Furlough
In June, the United States Copyright Office (USCO) released “Orphan Works and Mass Digitization,” a detailed report proposing new orphan works legislation and proposing a pilot extended collective license (ECL) for in-copyright, published works that have been digitized. In response to the USCO’s request for feedback on the collective licensing proposal, over 80 individuals and organizations submitted comments.
HathiTrust opposes the implementation of Extended Collective Licensing in the United States. In our filed comments I write that “the USCO has made a good faith effort to find ways that the public could gain even more benefit from mass digitization programs. But the program as described threatens to erode rights already available to users and it has no obvious source of sustainable funding.”
An ECL applies broadly to a class of rights holders (songwriters, say), who are collectively represented by a rights management society (ASCAP or BMI, for example), which licenses their works to and collects royalties from other organizations (like radio stations) or individuals.   ECLs are usually enacted though legislation that defines the role that a potential collecting organization must play and lay out the rules by which rights holders may opt-out.  Licensees are free to negotiate the terms of the license with collectiong organizations or to choose not to participate, but if they don’t they will have limited options to make use of those works.
As my example above suggests, an ECL-type system is already in place in the US for music, but the Copyright Office’s proposal concerns, among other things, published “literary” works:  books and serials.  Such ECLs already exist in several Nordic countries, but not in a country with a publishing market as large as the United States.  For an ECL to work, the rights management organization needs to be able to find those who own the rights to the works being licensed.  In the context of mass digitization or extremely large collections of material, such as HathiTrust or Google Books,  this is no small task, and one that would require significant upfront investment as well as potentially high licensing fees.
Users in the United States have many rights that are not subject to licensing.  Since 2012 courts have consistently ruled that mass digitization to support activities such as full-text search or access for print-disabled users are fair uses under US law.  Section 108 of the Copyright Act lays out many uses that libraries can make on behalf of their patrons.  Supporters of ECLs argue that there are other uses that could be enabled through a license, which may be true, but libraries’ long history with electronic licensing has taught us to look critically this argument.   Many libraries have been presented with licenses that forbid fundamental activities such as document delivery.   In theory it may be possible to create a collective license that is affordable and protects all existing rights that users and libraries have, but it is doubtful that this could actually be done for books and meet expectaions of licensors and licensees.
Others have publicly expressed their oppositionThe Author’s Alliance analyzed all responses and notes that “only nine unambiguously supported the initiative” while 52 expressed opposition. Their analysis points out an interesting lack of consensus among creators and the organizations that would represent them. The supporters of  ECL are organizations that would potentially act as collecting societies, licensing works and distributing payments to rights holders.  The opponents are not only library-focused organizations like HathiTrust, but also creators’ organizations and individual authors.
The widespread opposition to ECLs should lay to rest this idea, but the Copyright Office has not yet announced its own response to these comments.  Fundamentally, our biggest challenge to using copyrighted works comes from our limited knowledge about the copyright status of published works.  While ECL is a bad idea, I hope that the community’s comments will spur the Copyright Office to work more closely with the academic and library community to address this problem.