July 2, 2014
On May 21, HathiTrust submitted formal comments on a Roundtable discussion  organized by the U.S. Copyright Office on Orphan Works and Mass Digitization. An excerpt containing the main points is copied below. The full comments can be read on the Copyright Office web page .
- HathiTrust uses the extant law to provide its services (including preservation, full-text search, and access for those with print disabilities) and does not need orphan works legislation to do this work. To the extent that Congress wishes to advance education and scholarship, especially for materials such as unpublished manuscripts or photographs found in libraries and archives, we believe it is imperative that any orphan works legislation that is passed must not a) impinge on existing rights and limitations now codified in Sections 107, 108, 109, 110, and 121 of the Copyright Act, or b) require payments for uses of works that could now be made without charge under existing law. Legislation that does otherwise would have the potential to undermine the valuable services that libraries of all kinds provide to the public, and that libraries in HathiTrust in particular have carefully sought to provide for the benefit of their immediate scholarly and academic communities, as well as for the general public.
- Best practices for a rightsholder search could be of value to many potential users of in-copyright works. There is a danger, however, that legally defined standards for a “reasonably diligent search” could be so general as to be unhelpful, or so demanding that they lack flexibility to adequately address a variety of complex circumstances. Any such legally defined standards that might be created must guard against these dangers and not reduce the accessibility of orphan works to the general public that is afforded under current law. Furthermore, relevant to the crafting of such standards, we believe that individual user communities are in the best position to understand search requirements and formulate best practices for searches within their respective communities.
- The Copyright Office should consider seriously that the difficulties of identifying orphan works stem in large part from a lack of information. For example, searches for rights holders are complicated and time-consuming today because relevant information about rights transfers is not widely accessible. In light of this, a broad effort to establish and share facts concerning the rights holders of works, including heirs, would be of great benefit at this time to communities interested in making use of orphan works.
Extended Collective Licensing
- HathiTrust is not persuaded that extended collective licenses (ECLs) are a solution to the orphan works problem. Most nations that have adopted ECLs are smaller and have a different copyright environment than the U.S., where the rights of the copyright holder and the needs of the public for broad access to works are balanced through provisions in the law.
- Moreover, the nations that have adopted extended collective licensing schemes have done so in a manner that would transgress the First Amendment and would trammel the ability of fair use and other rights and limitations necessary in U.S. law.
- HathiTrust has shown that we can pursue digitization projects within the law, and without compulsory, statutory, or collective licensing schemes. A collective licensing scheme would thwart the kinds of truly transformative uses that we have seen HathiTrust and other digitization projects make. In addition, ECLs would drive up costs and could have the effect of further limiting access to orphan works.
- We were struck by the degree to which Roundtable participants opposed the implementation of an extended collective licensing scheme in the United States, and believe that this demonstrates clearly that such a legislative solution should not be pursued.
- The courts have resoundingly ruled that mass digitization projects pursued by HathiTrust and our participants fall within fair use.
- Mass digitization provides valuable new opportunities for research, including text mining and computational research. The courts have determined that such non-consumptive research is fair use and benefits society broadly.
- Through mass digitization the collections of some of the world’s greatest research libraries are for the first time fully available to users who have print disabilities.