Imagine you are a researcher in 2050, researching the history of the Black Lives Matter
movement. But you've stumbled across a problem: almost every Tweet, post, video or
photograph with the hashtag #BlackLivesMatter that you want to use in your work is an
orphan work (i.e., works whose owners are impossible to track down, but are still
covered by copyright). You'd like to ask permission but all you've got to go on are
usernames from defunct accounts. Where do you go from here?
Last week, the Copyright Office accepted responses to its Report on Orphan Works and
Mass Digitization. (Full disclosure, I represented the Internet Archive in this proceeding,
but all views here are my own). But that Report has no answers for our hypothetical
researcher; it doesn't once mention or consider the question of what we are going to do
about the billions of orphan works that are being "born digital" every day.
Instead, the Copyright Office proposes to "solve" the orphan works problem with
legislation that would impose substantial burdens on users that would only work for one
or two works at any given time. And because that system is so onerous, the Report also
proposes a separate licensing regime to support so-called "mass digitization," while
simultaneously admitting that this regime would not really be appropriate for orphans
(because there's no one left to claim the licensing fees). These proposals have been
resoundingly criticized for many valid reasons.
Another reason to add to the pile is that it is exclusively focused on analog
orphans -- books, photographs and other materials in physical formats gathering dust in
small local library collections or arcane institutional collections. These materials are
culturally important, and scholars have shown that many have fallen into a 20th-Century
digital black hole. But the black hole that could engulf digital orphans is poised to be
ultramassive in comparison.