Orphans Works and Fair Use

.@ARLPolicy @mmasnick and @klsmith4906 have already blogged and tweeted most of what should be said about the recent Report on Orphan Works from the U.S. Copyright Office.

Like them, I’m particularly concerned about the critical tone that the Report adopts regarding fair use, not only with respect to orphan works in particular but with respect to copyright generally. The myth persists that fair use is a bad and unhelpful doctrine, not only for profit-maximizing copyright owners (it is understandable that they would tend to spend out against fair use, though not all do) but also for society as a whole.  Why does the U.S. Copyright Office take what appears to be a dim view of a doctrine that has such a sound historical pedigree and that plays such a fundamental role in the copyright system?

That’s a rhetorical question.

It was written, more than a decade ago:

“[S]ocial and cultural patterns underlying case-by-case adjudication of fair use problems may have achieved something that formal reliance on the fair use statute has been unable to produce: a framework for analyzing fair use problems that is both stable and relatively predictable in the context of legal doctrine, and that corresponds in a sensible way to the behavior of individuals and institutions governed by copyright law.”

On the Report on Orphan Works:

Association of Research Libraries: http://policynotes.arl.org/?p=1075

Mike Masnick, TechDirt: https://www.techdirt.com/articles/20150607/14411031264/only-copyright-office-would-fix-problem-orphan-works-doubling-down-problem-itself.shtml

Kevin Smith: http://blogs.library.duke.edu/scholcomm/2015/06/11/this-is-a-solution/

And see Jennifer Urban’s article, “How Fair Use Can Help Solve the Orphan Works Problem.”