There is a growing sense in copyright circles that something needs to be done about orphan works. In many ways, we can thank the Google Book Settlement for jolting policy-makers into action by including a clause in the agreement that deals with future orphan works legislation. In case you missed it, the agreement says:
“3.8 (b) Effect of Changes in Law. Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b)
What a breathtaking clause. Gaze upon its magnificence! Bask in its glorious, um, glory! This pretty much means that Google will be able to include orphan works into its digitisation service, which has prompted some commentators to point out that this will translate into a de facto monopoly on orphan works.
Enter the European Commission, who seems to frown upon people blind-siding their regulatory efforts with something as crass as a private agreement, or as James Boyle eloquently puts, “We Must Stop Google Books Because It Will Work!!!“. The Commission has issued the following statement with regards to orphan works in their latest Copyright in the Knowledge Economy communication:
“The overall aim of tackling orphan works – their digitisation, preservation and dissemination – is to establish common standards on the level of due diligence in searching for the owners of orphan works and resolve the issue of potential copyright infringement when orphan works are used. As a key building block in the new comprehensive strategy on intellectual property rights, an initiative on orphan works should provide for an EU-wide solution to create legal certainty, facilitate the knowledge flow necessary for innovation, and prevent obstacles to intra-Community trade in orphan works.
The orphan works problem will be examined in an impact assessment which will explore a variety of approaches to facilitate the digitisation and dissemination of orphan works. Possible approaches include, inter alia, a legally binding stand-alone instrument on the clearance and mutual recognition of orphan works, an exception to the 2001 Directive, or guidance on cross-border mutual recognition of orphan works.”
Apparently, the EU is looking at two types of solution: a licensing scheme, or a copyright exception. Both possible solutions have problems, but at least there is consensus that something must be done.