Georgia Harper has a strongly negative critique of the new orphan works legislation that is well worth a read.
The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.
Harper believes that if the bill passes it is likely to resemble the larded House version, and that it may get even worse.
After the bill was released, I was taken aback by the opposition of several bloggers to the Notice of Use registry in the House bill. On its face, I think requiring people to register their use of an orphan work is not a bad idea; over time, it would build a body of works that are recognized as orphans, and would make it easier for copyright holders to keep an eye on things in the unlikely event that someone mistakenly (and in good faith) identifies a work as an orphan when it isn’t. What I missed in my first reading of the bill, and what shrewder readers like Georgia Harper spotted, was that a registration requirement was likely to be cumbersome and expensive, and could end up acting as another deterrent to potential users. In other words, the House bill could actually make things worse.
Meanwhile, Kevin Smith takes a more hopeful position, though he also sees the bills as limited at best. He focuses on potential library uses of orphan works, particularly in digitization projects, which are also some of the uses I am most concerned about.
Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.
I’m inclined be optimistic about the possibilities that even a pandering orphan works bill would open up. Some academic libraries, including Stanford, the University of Texas, and the University of Michigan, are already developing tools, processes and workflows for researching the copyright status of digitized materials. That work should provide a good foundation if it turns out that libraries do need to comply with registration requirements or complicated “best practices” guidelines.