The Digitization Quagmire

Copyright Office Studies Mass Digitization Issues By Joel Hecker, Esq. The Copyright Office has formally recognized that the marketplace for digital versions of copyrighted books (and by extension, copyrighted photographs) is expanding rapidly. It also understands that libraries and others clearly intend to mass digitize collections for various purposes, as evidenced by the Google Book Project and other litigations.


The Copyright Office believes that issues concerning copyright law and new technologies, which were hotly debated in the Google Book cases, would benefit from further discussion among all stakeholders. To that end, the Copyright Office recently issued a 40 page analysis plus
The court ruled that the proposed class action settlement would inappropriately implement a forward-looking business arrangement which would grant Google significant rights to exploit entire books without permission from copyright owners, while at the same time releasing claims well beyond those alleged in the complaint. The court also found that the proposed settlement encroached on Congress’s responsibility for setting copyright policy, which traditionally has been the exclusive domain of the legislative branch.

Although photographers were not specifically involved in that lawsuit, the opinion directly affected them since a companion lawsuit brought by the American Society of Media Photographers (ASMP) and others against Google alleged substantially the same wrongdoings and sought substantially the same relief.

It was the intent of the photographer plaintiffs to become a part of any resolution of the initial lawsuit so that any determination as to authors and publishers would thereby also encompass photographers. The photographers’ case is also ongoing the proposed settlement agreement in the authors’ case has been that The Copyright Office recognizes that these developments have sparked public debate on the risks and opportunities that mass book digitization may create. Questions raised by the Copyright Office include, as stated in the Analysis:
What mass digitization projects are currently underway in the United States?
What are the objectives and who are the intended beneficiaries?
How are the exclusive rights of copyright owners implicated?
What exceptions or limitations may apply, to whom, and in what circumstances?
To the extent there are public policy goals at issue, what could Congress do to facilitate or control the boundaries of mass digitization projects?
Would orphan works legislation help?
Are efficient and cost-effective licensing options available?
Could Congress encourage or even require new licensing schemes for mass digitization? Could it provide direction and oversight to authors, publishers, libraries, and technology companies as they explore solutions?


The Analysis concludes that there is now sufficient information to undertake an intense public discussion about the broader policy implications of mass book digitization. By necessity, this discussion must address the relationship between the emerging digital marketplace and the existing copyright framework.

A key preliminary consideration is the extent to which existing digitization projects are already underway. In addition, whether the copyright owners are (or will be) in a position to offer possible market solutions for mass digitization projects should be considered.

Another concern is how to apply the existing copyright framework to the capture, collection, and preservation of “born digital” works, such as electronic books (“ebooks”) and digital photographs and other visual artworks that might be incorporated in those books. The number of these works available in the commercial marketplace has been expanding rapidly.


All these questions apply equally to orphan works as well as to works where the copyright owner is known and locatable. In the context of copyright law, the term “orphan work” generally means a work for which the copyright owner cannot be identified or located by a good faith user for the purpose of requesting permission. The Analysis acknowledges that the orphan works problem is much more extreme in the area of photography than books because the title page of books routinely identifies the author, publisher and date of publication, while photographs often lack any copyright or ownership indicia.

In 2008 as a result of the Copyright Office’s 2006 Orphan Works Report, Congress came close to adopting a consensus bill. The Analysis notes that that proposed legislation is a good starting point for the orphan works discussion, and going forward, that Congress may want to explore orphan works in the context of large-scale digitization projects.

The Analysis also discusses benefits and detriments to various options for licensing arrangements, including direct licensing between digitizers and authors or publishers on an individual basis, mandatory or voluntary collective licensing between organizations authorized to grant rights and collect royalties, and statutory licensing. The Analysis does not take a position either way on any of these issues; instead it advances arguments for and against each potential licensing scheme.


This will clearly be a complex and ongoing dialogue amongst the various stakeholders. The implications of any final resolution may profoundly impact the photography industry as we know it today. Accordingly, I suggest each of you should keep abreast of these discussions and events, and actively participate in the dialogue. You therefore may make a difference in the decision-making process.

Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com .Copyright 2012 Joel Hecker

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