Orphan Works and Extended Collective Licensing (ECL)

July 22, 2015 — What’s happening with “orphan works”? What is “Extended Collective Licensing” (ECL)? Why should NWU members and other writers care?

These issues are complicated, but important for working writers. Many NWU members are only beginning to understand what is meant by so-called “orphan works”, and most writers have never heard of “Extended Collective Licensing”. But proposed laws related to these concepts pose a major threat to writers’ abilities to earn our fair share of the revenues from new digital uses of our work.

In June of 2015, the US Copyright Office released its latest report and recommendations for new laws related to so-called orphan works. Now the Copyright Office is soliciting comments from the public regarding two other aspects of possible legislation to permit “mass digitization” of printed works without writers’ permission.

Even before the latest report and recommendations from the Copyright Office, the NWU met with both Democratic and Republican staff of the relevant Congressional committees to discuss our opposition to these proposals. The NWU will be submitting comments to the Copyright Office in response to its latest inquiry, and encourages NWU members and other writers to familiarize themselves with these issues and submit your own comments.

For almost twenty years, the NWU has been concerned about the effect on writers’ incomes of a variety of “mass digitization” proposals and projects to scan collections of written works and distribute them in electronic form, without first obtaining permission from the authors of these works. We’ve been involved in litigation and lobbying on this issue, and have tried to initiate dialogue with the supporters of these schemes.

Many librarians and archivists think it wouldn’t be feasible to obtain permission from millions of individual writers, although the experience of “crowdsourced” peer-to-peer decentralized platforms for the distribution and sharing of content from millions of individual providers suggests that they are wrong.

Some proponents of mass digitization schemes are oblivious to writers’ new digital and self-publishing business models and the growing revenues writers are earning from a variety of new (authorized) digital editions of our personal “backlists”. Others realize the negative impact that unauthorized mass digitization would have on writers’ earnings, but think that writers’ livelihoods would be acceptable collateral damage in their pursuit of the holy grail of a universal digital library, by any means necessary. Internet companies hope to “partner” with libraries, archives, and/or print publishers to profit from the publication of digital editions of backlists and paper collections of books and journals that are out of print in their original editions — even though writers are often making these available on our own websites, as self-published e-books, etc.

Both US copyright law and the Berne Convention copyright treaty generally prohibit copying without permission. Exceptions to this requirement are permitted as “fair use” or by the Berne “three step test” only if they don’t interfere with the “normal commercial exploitation” of the work being copied. So determining whether mass digitization without permission is allowed by US law or international treaty requires an understanding of the new norms of commercial exploitation of written work in the digital age. These include self-published e-books, advertising-supported (and often anonymous) personal websites, written content distributed in the form of smartphone or tablet apps, and many others. Most of these new formats are easy to self-publish, aren’t included in library catalogs or bibliographic databases, and aren’t on the radar screens of most librarians.

The NWU has consistently recommended that the Copyright Office, Congress, and WIPO (the international copyright treaty organization) start their inquiries into digital copyrights by consulting writers about our new business models, before they begin considering new exceptions to copyright that might impact our livelihoods. But our recommendations have been ignored. As a result, proposal after proposal has been brought forward for unauthorized mass digitization schemes that would interfere with writers’ revenues from our own digitization efforts, and thus violate both the Berne Convention and the principles of “fair use”.

In its 234 pages, the latest Copyright Office report devotes not a single sentence to the meaning of “normal commercial exploitation” of the written works that would be digitized, or to whether the legislation it proposes would interfere with that legitimate commercial use and the income it brings to writers.

The Copyright Office report and its two follow-up public inquiries address two possible legal frameworks for unauthorized mass digitization: an exception to copyright for so-called orphan works, and a new legal scheme for extended collective licensing (ECL) for mass digitization of written and graphic works.

Orphan Works

Would-be publishers of new digital editions of works previously published on paper have long sought to have the law changed to exempt them from liability for copyright infringement if they claim that they conducted a “diligent search” for the entity they thought was the rightsholder but failed to “find” them.

Such a law would categorize anything published anonymously, most works previously published by publishers that have gone out of business, and many other works, as orphan works. These would be fair game for copying without permission from, or payment to, their rightful owners — in most cases, the original authors. No consideration would be given to whether the authors/rightsholders are themselves distributing or using the works, and earning money from them, in new formats or editions such as e-books or Web content.

Proposed exceptions to copyright for orphan works are based on the assumption that if a work is being commercially exploited, the rightsholder(s) will be findable by “diligent search”. But that’s just not true, in a large and growing number of cases. Many writers, such as those writing on controversial or stigmatized topics or genres, have good reasons to try to protect their anonymity even while trying to make a living. Anonymous websites and online advertising make it easier than ever to self-publish both anonymously and profitably. Even if the author is known, there’s no way for a third party to determine who holds particular rights to a work without consulting the author. Publisher-author contracts aren’t public documents, and only the author knows whether, and if so to whom, she has assigned which, if any, rights. But if the author can be consulted, the author can decide whether or not to authorize copying or a new edition in a new format, and no new law is needed.

Orphan works legislation would allow the creation of new unauthorized digital editions which would compete directly with new digital editions, formats, and uses created or authorized by writers ourselves. Most self-published new editions, such as copies or updated versions of previously published articles, stories, poems, book excerpts, etc. posted on authors’ websites, are not included in any bibliographic database, and wouldn’t be found by any database search. These works would be deemed orphan works despite being actively and commercially exploited by their authors.

The NWU has consistently opposed such orphan works legislation as a direct threat to writers’ incomes. The NWU was part of the coalition that defeated such a proposal in Congress in 2005. We participated actively with two sets of written comments and in-person testimony at the public roundtable hearing in the latest Copyright Office consultation on this issue. In the second round of public comments, the majority of the submissions to the Copyright Office came from NWU members opposing orphan works legislation.

The NWU has suggested several alternative approaches to the problem of orphan works. Most such works are those to which rights are, or were, held by a publisher that has gone out of business. So our most important recommendation is for automatic reversion to the author or creator of rights held by a publisher or third party if that rightsholding entity goes out of business. This would enable the writer to release the work in a new edition or format, or license it to a new publisher.

We’ve also urged libraries, including the Library of Congress, to open their catalogs to information crowdsourced from individual writers. Many writers are already digitizing our backlist works and making them available in new (and potentially profitable, given the low costs of digital distribution) electronic formats. Writers should be allowed to augment bibliographic databases and library catalog listings for paper holdings of “out of print” editions to provide URLs or other pointers to new digital editions, such as self-published new e-book editions or authors’ websites where articles are available.

It’s hypocritical and a disservice to both readers and writers for librarians to claim they can’t find us, or need to digitize our work themselves because our work is “out of print” (in the original paper editions), while refusing to allow us to provide library patrons with pointers to the new (and perhaps updated and improved) digital editions of these same works that we have already created and made available.

Digital storage is cheap and easy. Libraries’ core expertise and added value over mere data warehouses is in cataloging, indexing, and helping readers find information. Writers are eager to work with libraries to help library patrons find our new digital editions of works held by libraries in paper formats.

The final report by the Copyright Office on orphan works was released on June 3, 2015. It entirely ignores the objections and alternative suggestions made by the NWU and other writers and creators of written and graphic works. It recommends that Congress enact a new law essentially the same as the one that was proposed and defeated in 2005.

The Copyright Office can only make suggestions to Congress. It remains to be seen whether any member of Congress will introduce a proposal for orphan works legislation, whether it will be a standalone bill or part of an omnibus “copyright reform” bill, and how closely it will follow the Copyright Office draft.

Orphan works legislation seems to be the bad idea for copyright “reform” that just won’t die. The NWU will continue to monitor the status of copyright legislation in Congress. Stay tuned!

Extended Collective Licensing (ECL)

In its report in early June, and in two follow-up notices of inquiry published in the Federal Register a week later, the Copyright Office has proposed extended collective licensing as a way to legalize a “pilot program” of mass digitization of collections of printed books, articles, and/or archival documents.

“Collective licensing” refers to systems through which a would-be user can obtain licenses to many writers’ (or other creators’) work through a single intermediary to which creators have assigned those licensing rights. Many stock-photo agencies, for example, work this way. For written work, writers (or other rightsholders, if they actually hold the relevant subsidiary rights) can assign rights to photocopying, “offprint”, or other specified uses to the Copyright Clearance Center (CCC). The CCC collects payments from users and distributes them (minus its service fee) to the individual writers or other rightsholders. It can be easier for a user — for example, a publisher of coursebooks containing articles originally published in many different books and journals — to deal with one licensing agency than with many individual writers.

The NWU has supported collective licensing systems, and portions of many NWU members’ work are available through the CCC or other such agencies. (There are problems, however, when print publishers purport to grant licenses to CCC for exploitation of rights that those publishers don’t hold, and that are actually owned by the writers.) In 1997, the NWU tried to set up our own system for collective licensing of NWU members’ work, the “Publication Rights Clearinghouse”. But we lacked the resources to develop the system without greater uptake by licensees. Unfortunately, potential licensees of digitization rights to our written work largely ignored the possibility of licensing, and undertook their own mass digitization without permission.

“Extended Collective Licensing” (ECL) refers to a system in which an organization grants a “license” for copying of a body of work, even though the organization doesn’t actually have permission to represent all of the creators or other holders of the rights it is purporting to license. The theory is that if the organization is sufficiently representative of most of the members of the class, it should be allowed to act as though it were an authorized representative of all of them. Under an ECL scheme, a licensing organization is allowed to set prices and issue licenses for an entire body of works, or for all works of a particular type. Once it receives licensing fees, it has a duty to try to track down the individual creators or other rightsholders and pay each of them their share of the licensing revenues it has received for their work.

Currently, US copyright law does not allow any extended collective licensing of written or graphic work. In the US, a licensing agency needs explicit permission in advance from each writer or rightsholder it represents, and can grant licenses only for works to which it has been specifically assigned rights.

Laws in some other countries permit extended collective licensing for certain uses of written work, such as photocopying of individual pages or articles from books or journals. A local “reproduction rights organization” (RRO) is designated to receive a per-page fee for these copies, and anyone who wants to photocopy pages from any book or journal is allowed to do so if they pay the RRO this fee. The RRO then has a legal duty to try to identify the holders of the photocopying rights to the copied pages, and pay them their share of the licensing fees. If the RRO can’t identify or locate the individual writers or other rightsholders, the RRO pays their share of the licensing fees to organizations that work to advance the general interests of all writers. The NWU and many of our members receive money from these ECL schemes for photocopying in foreign countries of books, articles, etc. by US writers.

The test for the legality of these ECL schemes is whether they interfere with the normal commercial exploitation of writers’ rights to our “backlist” works. Very few US writers are actively exploiting the rights to photocopying in foreign countries of editions of their work that were previously published in books, periodicals, or journals. And photocopies made in foreign countries are unlikely to make their way back into the US to compete with other editions of the same works. So ECL revenues for foreign photocopying are typically secondary and incremental. They add to, rather than detracting from, whatever revenues US writers are earning from new (perhaps self-published) US print or e-book editions of our previously published works, or from ads on our personal websites where we have posted our older work.

On the other hand, ECL schemes for digitization, rather than photocopying, fail the same test. Digital copies made under ECL licenses directly compete with, and divert readers and revenues from, other authorized digital editions.

Many writers are actively exploiting our digital rights, including our rights to works previously published on paper in books or periodicals. The primary source of continuing revenues from the rights to most “backlist” written works previously published in books or printed journals, and included in library or archival collections, is not photocopying or the publication of new hardcopy editions but the distribution of new digital editions. These new digital editions, often self-published, take the form of e-books, paid PDF downloads of digital “offprints”, content on our own revenue-generating websites, smartphone app content, etc.

Someone who reads a digital copy of one of our previously-published works made under an ECL scheme doesn’t pay to download a PDF offprint or self-published new e-book edition, and doesn’t click on any of the ads on the pages of our website on which we have republished all or parts of the work (or of a new edition of it).

In a world where most revenues for Web publishing come from advertising, clickstream diversion deprives writers of revenues and interferes directly with the normal commercial exploitation of digital rights.

It doesn’t matter whether an ECL scheme is limited to libraries or educational organizations, or if the organization digitizing its collection tries to restrict access to students or library patrons. Students and library patrons who want to read a book or article in electronic form would, in the absence of a new ECL copy, visit the author’s website, and might pay for a PDF offprint or click on ads. Even copying by nonprofit entities, and digital distribution for noncommercial use, diverts clicks and interferes with revenues from other normal modes of exploitation of digital rights.

Extended collective licensing for digitization would, in this way, deprive writers of income and violate the Berne Convention. ECL may be appropriate for photocopying and perhaps some other secondary rights, but not for digital copying or conversion (scanning) rights — the primary and most valuable rights to most backlist works.

The NWU and our U.S. allies are not alone in considering digital rights inherently “primary” rather than “secondary”, and inappropriate for ECL. Action on Authors Rights put it like this in discussing ECL proposals in the U.K. that would include primary digital rights:

The right to issue a work in a digital edition, including any reissue of a work that has been published in print, has to be regarded as a primary right, like the right to publish a work as a printed book. In a world in which digital publishing is widely expected to overtake the market in printed copies, it cannot be viewed in any other light. The right to license photocopying is an example of a secondary right. Existing collective licensing schemes in the UK apply to secondary rights. Any proposal to apply extended collective licensing to primary rights (such as book digitization) is a matter of special concern….[E]xtended collective licensing is not an appropriate way to license primary rights, including digitization rights

We don’t think most librarians want to deprive writers of our livelihoods. But we don’t think most librarians understand the potential impact of their mass digitization schemes on this growing component of our incomes.

Despite these legal and economic problem, the Copyright Office is proposing that Congress legalize a “pilot program” for mass digitization of library and/or archive collections under an extended collective license. This is essentially the same thing that was tried before, illegally, by Google and its library partners, in a scheme opposed by the NWU and many other writers, illustrators, photographers, and other creators of visual works.

The Copyright Office is asking for comments from the public (including from writers and other creators) about the form that such an ECL law to permit mass digitization should take. We think there should be no such law at all, for the reasons discussed above. The deadline for comments was originally August 10, 2015, but has been extended until October 9, 2015. You can submit your comments here.

The Copyright Office also asked, separately, for comments on whether or how photographs, illustrations, and other graphic works should be included in such a scheme. Many of our allies among visual artists, including those who led the successful fight against orphan works legislation in Congress in 2005, believe that graphic work should not be included at all in any ECL scheme. The deadline for comments on this issue was originally July 23, 2015, but has been extended through October 1, 2015.

The NWU will be submitting comments to the Copyright Office opposing ECL for digital copying of written work, and again urging the Copyright Office and Congress to go back to the drawing board and start their inquiries over by consulting writers about the new ways we are earning money from our copyrights in the digital age.