Free for a Fee

Last spring, Bill Carney of the OCLC joined us as a panelist at the Center for Intellectual Property’s Annual Symposium to talk about an endeavor that was, at the time, still in development. Well, his Copyright Evidence Registry [OCLC] launched last week! The effort promises a big step forward for those struggling to come up with ways to identify works for whom owners cannot be identified or located — orphan works. The effort also enables those with information about the owner of a work to contribute that as well. OCLC is taking a “crowd-sourcing” approach, or a distributed contribution approach to a problem that is of such large proportions that it seems nearly insoluble any other way. How does one motivate people who know something about a work to come forward and identify themselves, the basis for their knowledge, and what they know?

One of the persistent problems with the (so far) failed legislative attempts to address the issue of how to transition works for which there is no one to “ask permission” to digitize them and bring them into the networked digital environment, has been the interpretation by so many copyright owners, especially image copyright owners, that the proposed laws’ safe harbors constitute a threat to their quiet enjoyment of their property. Even though the proposals tried to address their concerns with what I thought were really far too solicitous safeguards in many cases, they still fell short of what owners wanted (which was, IMHO, just to kill the bills).

The difference between legislative solutions and OCLC’s approach is pretty dramatic. There is no safe harbor. Nothing about the law changes at all. All the OCLC effort does is help people to compile information in one location on which individual judgments about the status of a work can be based. Anyone and everyone can contribute, though credibility is clearly enhanced if the contributor is associated with an institution like a research or other library, or an artists’, writers’ or photographers’ collective, but the bottom line is that the evidence will be compiled and it will be up to users of the works described to decide at what point they feel the risk of infringement has been reduced sufficiently for them to make the use they propose.

The credibility of the information (and the provider of the information), the quantity of evidence, as well as the character of the proposed use combine to make a sort of sliding scale of risk assessment. For example, someone proposing to merely post a work for public access for nonprofit educational, personal or scholarly use probably perceives a lower comfort threshold than someone proposing a commercial use or reuse of the work. In fact, for some uses, nothing short of a legislatively prescribed process for conducting a search for the owner, and a remedy safe harbor, will satisfy. But at least this will get the ball rolling, especially for nonprofit educational and scholarly uses.

We are considering now whether UT Austin’s Libraries will participate in the beta phase of OCLC’s roll-out. I consider it a wonderful opportunity to begin in a very concrete way to work on a solution to the complex problem of enabling the transition of abandoned works to the Web where they will not be lost to future generations, without imperiling the rights of those who own some of those older works that could mistakenly be identified as orphan to control and seek compensation for their use in the digital environment. What a challenge.
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