Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It’s been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.
The concept behind orphan works is simple: after a fruitless search to find the rightful owner, a searcher may the use a copyrighted work without the fear of hefty copyright infringement damages. Independent and documentary film makers, libraries, archives, and museums all have collections of orphaned works that they would like to transform into new works or display, but because they cannot find the owner to ask permission or license the work, the threat of copyright infringement (which carries statutory damages as high as $150,000 per work) freezes them in their tracks. These users already conduct exhaustive searches to track down owners, but for 99.999% of these orphans, the owners cannot be found for a number of reasons: a work wasn’t registered, ownership was transferred but never recorded, a corporation went out of business, or the author died without heirs. The almost 20 page bills are drafted to address the 0.001% of the cases out there, to assure owners that the incentives for creation are not lost.
And both bills go a long way to address the fears of owners while at the same time trying to bring visual works owners into the 21st century. Safeguards are put in place to ensure that users put “diligent effort” into their “qualifying searches” (previously known as “reasonably diligent” searches). The Copyright Office will maintain and make available helpful search guidelines from owners and users in the industry and if challenged a court will consider whether the user’s actions were reasonable and appropriate for the circumstances and whether the user employed the applicable best practices. This will promote the creation and development of search guidelines and will help to match more orphans with their owners. The Copyright Office will also have to certify market-based registry services for visual art. We proposed and have written a lot about this idea to address the owners’ problem of an ineffective registry. It’s not all that complex: because the Copyright Registry’s online search provides woefully inadequate results (only text based searches and results, no ability to compare digital works against an index of images), the market will fill the gaps so long as they meet some basic requirements. A number of services already exist to answer this call and this provision will further spur innovative uses of modern visual recognition technology—of which, unfortunately, visual artists have never collectively taken advantage.
In the unlikely event of an owner resurfacing, the bill provides for them to be reasonably compensated, and if the user acts in bad faith, the full panoply of copyright infringement damages rains down on them. This was done out of concern, again, for visual artists who have repeatedly said they’re not going to be able to take a claim to court because the value is too low. To go even further, the bills require the Register of Copyright to conduct a study (much like the one that lead to the creation of this orphan works legislation) on remedies for small copyright claims.
But now that the bills are introduced, that doesn’t mean the hard work is over. The two bills aren’t the same. First, the Senate bill is what I’ll call the “clean version.” It’s language is at the root of the House bill without the additional gimmes for owners. It has the characteristics of what I described above and, in PK’s opinion, would need very little tweaking, if any. One provision we would like to see is in the registry certification requirements, that these registries be free for public searches and machine readable. While we understand the desire to remain laissez-faire and not put requirements on market actors, these registries are essentially taking over for a failure of a government agency and resource—the Copyright Office’s Registry. If it were the government doing the job, it would of course be required to make the contents of its resources available to the public. If the goal is to drag visual artists into the light to make sure they can be found, allowing independent registries to become locked-up silos cuts the other way. We look forward to working with Senate staff on this issue.
The House version is, again, good at its roots, but resembles more of a well decorated Christmas tree. Hung on it, you’ll find a “Notice of Use Archive” (NUA), a prohibition on using orphans on useful articles, a registration premium, and an extended effective date. The NUA will be housed at the Copyright Office as a repository to which users will have to formally submit their diligent effort searches. We were initially told that this archive would be “dark,” in that its contents would only be revealed when a user was sued, but it’s not that limited in the House bill as introduced, though a lot of discretion is given to the Copyright Office on how to develop the NUA. Yes, users will be documenting their search, but to require an extra formal filing to a repository will be costly, perhaps more expensive than reasonable compensation if the user were able to negotiate with the owner. If it’s not dark, it also raises privacy and “copyright troll” concerns—as users will be announcing themselves like fish in a barrel, and because only a description of the work (not a copy of the work) is required, every photographer that thinks they’ve taken a photo that fits a description is going to be pestering the user and claiming ownership. The stated goals were to educate users as to how to conduct a search (we think the guidelines will do a better job), and to assure owners that searches were being conducted (if the archive is dark, the owner doesn’t know anything anyways). To top it off, to fall within this whole orphan works limitation, users must submit their search—if not, the user is an infringer.
I’ve described the useful articles exception before. Unfortunately, it’s real and painted with broader brush because it covers all kinds of works, not just visual works. It’s a carve out that isn’t limited to the textile constituency that asked for it, and puts U.S. copyright law in the odd position of preferring certain kinds of works and uses to others.
The House bill gives a court the discretion to take into account the value (if any) of a copyright registration when considering reasonable compensation. Truthfully, it’s the most watered down version of the language we’ve seen. In the context of orphan works, it’s all too often irrelevant whether or not the work is registered because users do find valid registrations, but still cannot identify and locate the rightful owner—because the record wasn’t maintained or the company went out of business. This registration premium is meant to somehow reward owners for registering their works in the first place, but it’s misguided because it would still reward owners for not maintaining the registration that could have actually lead to the owner being found.
The effective date in the House bill is 2013, compared to the 2011 date in the Senate, but both have an earlier trigger, dependent on the Office’s certification of at least two visual registries. We think that even with our suggested additional “open” requirement, existing services could meet these requirements today. Still, we’d like the dates to match, preferring the earlier one to the later.
There’s still work to be done, but today’s introduction is a big step forward. Having a bill out there with specific language helps a lot. Some of the visual artists are going to be already lining up to take their pot-shots at the bill. They’ll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn’t. We’re going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress. Again, many thanks to the House and Senate Judiciary Committee staff for all their work on this, the first pro-user change to Copyright Law in almost two decades.
Back in the hazy days of the
Back in the hazy days of the beginning of the Internet, someone wrote parody lyrics to a famous song. I searched for weeks for the author, but the search was fruitless. Every reference to the song was a dead end road leading to someone who had collected it.
My quartet specialized in parody songs — which we usually write ourselves. But I wanted to sing THESE LYRICS. I wanted to sing it in shows sponsored by a company with a huge treasury — which, I might put at risk should someone come out and say, “Hey, I wrote that! Now pay me!” Without ever finding the author, either we or our employer could find themselves facing both actual and punitive damages.
The lyrics are an example of an “Orphaned Work.” As the US Copyright office, the courts, and the law presently sit — that an owner cannot be found is not an excuse for failing to get permission to use it.
Most works like the one I wanted to use are trivial. The owners are tickled to have their works heard, and don’t want any money at all. But most people aren’t willing to take that risk, as the costs are so high if someone does show up and is able to prove authorship.
I’m happy to read now, “Two orphan works bills were introduced to begin to bring balance back to copyright law - to help find owners and encourage new and creative uses of unexploited copyrighted works.”
Please — whisper in your Congress-critters ear that one of these bills need to be passed! You can include this posting which explains why — for free. :-)
Robb Topolski in Hillsboro, OR
The idea of orphan works
The idea of orphan works legislation is well-meant, but the implementation will have a lot of unintended effects. Think about it this way: what class of artists and content creators can afford to effectively maintain their works in some sort of large, bureaucratic registry?
If you want to produce good content, you have to spend all your time working on that content — not dealing with paperwork. If you’re a creative taking a paycheck and working for hire at a large corporation, the legal department is there to make sure that nobody steals the company’s intellectual property. But what if you’re on your own?
As a solo content creator, having to register my work with the Copyright Office is the bane of my existence. Why do I have to spend hours sitting in an office sifting through my work to sort out published from unpublished, declaring each published work (where there might be 600 such works in a registration) as a separate line-item on a form, then pay $45 per registration just for the privilege of being able to claim my rights?!
And then if I ever decide to sue Disney or whomever because they used something of mine without asking, I’ll spend years and thousands of dollars in court as they try to find the most minor errors in my record-keeping or registration procedure. Blah! They don’t need any more advantages in this process.
It’s time to strike one for the little guy, for the creatives that don’t have a whole corporate infrastructure dedicated to making sure someone gets paid for their art. Enough with this “artists should be starving or cogs in a machine” crap. I say any solution that requires the content creator to spend even more time and money to hold on to their rights will unfairly favor the kind of people who least need any more advantage. Rather than strengthening the registration concept with good but misplaced intentions, it’s time to get rid of registration and even the playing field so your average Joe with an artistic side can stand up to corporations that would otherwise happily run roughshod over everyone else’s rights. Sure, we need a solution that allows the libraries and museums to better serve the public, but we don’t need a solution that kills off a source of the very content everyone wants to use.
I oppose the bills.
I oppose the bills.
Briefly, the original intent for Orphan Works legislation was to correct copyright market failure and improve efficiency. Proposed legislation veers from that purpose toward political compromises that make matters even worse.
In the early days of US copyright law, when the US was still a net importer of works, as China is today, copyright was limited to a short term and to few, specific, areas of protection for the author. After this short term, and outside the boundaries of that limited area, works entered the public domain and could be reused freely. This was considered important to preserve innovation.
As authors and heirs found they could make money from a copyright monopoly, they lobbied Congress for increased protection vs. the public, and they have always got it. With this legislation they get even more, and the public still loses.
Along come computers and the Internet so everyone can be an author and publisher. What happens to the law?
If the copyright term were short and the area limited, then there would be no problem in exclusive rights to the author. If the copyright term is long and the area expanded, then this tinkering does nothing, it only adds to the rights of unknown parties who are not given incentives to produce new works, and it does not give new authors any incentives to reuse the old works, it simply distributes rights and obligations in some indeterminate new way.
Here is an example that might clarify the issue—perhaps you can show that I am mistaken. I want to publish a book on the Internet for free. I can determine that it is not in print but still under copyright by somebody. I guess that the copyright holder has no economic incentive to republish the work either for free or for money. I would be willing to do it for free, but not if it costs money to search for the holder or ask permission. It does cost money to do the search or ask permission, and it would cost me money if the copyright holder later determines I have violated his rights. So I will not publish the work. Basically, there is a conflict between the day-to-day operation of public, interactive, Internet publishing and the longterm copyright monopoly established in current law that is so one-sided for authors.
Congress could improve the efficiency of the market by requiring registration and the Library of Congress Copyright Office to maintain a free, accurate, and accessible database of all works. It will not do that, since it maintains that conflicts with international copyright law. The proposed legislation of privatization does nothing to solve this problem.
The proposed legislation instead tailors its application to that of specific interest groups, not the public domain. So it is intended for resourceful professional publishers that somehow can pay for production, including copyright searches, and control distribution. It adds more and different rights to the copyright monopoly and subtracts from the public domain, and potentially to the rights given to incentivize new works. No doubt these groups favor this redistribution of rights. I do not think the legislation is of general public benefit and so oppose it. If you do not agree, then please think about amending the bills to expire after a period of four years so the matter can be reassessed then.
For some insights on this
For some insights on this issue, see “The Music Industry’s Extortion Scheme” at http://www.slate.com/id/2189888/, particularly the comments.
Having lost their grip on the market control over those who create and perform music works due to the internet, traditional producers and distributors of music are attempting to assess a uniform tax on broadband service which funds specific works by tracking frequency of play.
Part of this is driven by the “micro-transaction” cost problem of dealing individually with millions of independent content sources, and one reaction is to accumulate large numbers of individual songs into a single data bank or device and sell the whole package for one, lump sum “access to everything” deal.
This turns the traditional model on its head - that of cultivating a small number of “stars” and saturating the market with their work - to eliminate some of the middlemen altogether. That’s what they’re really worried about - the competition, not the property rights, the latter largely a ruse to maintain their market power
As for orphaned content, the burden of proof should weigh heavily against those who could not possibly have sponsored it directly nor claim the same, but do claim it is not orphaned while failing to produce the author - compared to those who attempt to use it as a public domain resource.
Otherwise, as mentioned above in the comments, there’s no good reason why individual creators of content should not be able to register their copyrighted works online with negligible costs coupled with potential tracking options. Allowing these barriers to continue is one more means of undermining competition by the traditional concentrated players in the content market.
Eric434, Thanks for your
Eric434,
Thanks for your thoughtful comment. My question is where in the bills is an owner required to do anything with regard to maintaining or registering (or reregistering) their copyrighted works?
The bills provide for the Copyright Office to certify market based “visual registries.” These visual registries don’t have any legal effect on the registration system, but could go a long way to help users find owners by providing visual search results (think of the results on a Google Image search). Owners aren’t required to do anything with respect to these visual registries if they don’t want to. Nothing changes their copyrights and owners won’t have any additional responsibilities. But, I will say, those who upload their works to these visual registries will be making it easier for others to find them.
Eric, It’s an honor to
Eric,
It’s an honor to have you post a comment here. Thanks for voicing your opinion and being part of the debate. I’d like to comment on your comment, if I may:
I respectfully disagree but I understand where you’re coming from. Your argument is that if we changed the term of copyright, we’d have more works in the public domain, and some of the orphan works problems would be solved. While that may be true, it doesn’t address all orphans and further it would be seen as a limiting of owners rights, specifically the term of their rights. Whether or not I agree with that, it’s not a political reality. However, addressing some of the problems that prevent users from using orphans could be, and I think that’s what the Congress has chosen to address here.
I understand that’s what your Supreme Court case was all about, at least in the context of works that should have already fallen into the public domain, but for the CTEA. However, what if the work were a younger one, and one that may not be currently exploited, but well in copyright, yet the owner still cannot be found? How would you know that the owner cannot still be found? Under today’s law, “guessing” that the owner doesn’t have an economic incentive isn’t justification for copying the work. You’d have to ask the owner’s permission and to do that you might have to put-in some effort. Maybe a diligent effort?
For good or for ill, we’re not talking about the Public Domain Enhancement Act here. Instead we’re trying to address the problem more modestly and in a way that independent and documentary filmmakers, libraries, archives, and museums say they find useful.
This deserves
This deserves opposition.
Copyright law protects the individual artist, whether writer or illustrator or photographer or many others. As far as law goes, copyright law is pretty clear and easy to understand. If you are a free and unencumbered creator - not in someone’s employ, etc. - at the moment of creation of a work, you own it. No equivocation. You don’t even have to register it with the government, you don’t have to put a copyright symbol on it, you don’t even have to print “Copyright” on it. You create it, you own it. It is a property, and one you can hand down to your descendants. It has value. This law was designed to be clear and strong and to protect the artist, and for the artist’s life, in most cases, and beyond. Why so clear? Why so strong? Because others try to take good, creative works, use them, benefit and profit from them, and a lone individual artist is often without resources, power, or money - the average artist - to fight them.
I’ve read the discussions, explanations, and so on, and what still remains clear after trying to wade through the justifications and such, is that the artist will lose. Ah, there’s works that someone wants “to share” or exhibit or publish, and profit from, but you can’t quite locate the owner. I say this: too bad. Wait for public domain.
The shift will be away from whether it was taken or not - translate as “stolen” - but the burning question now will be whether someone made some reasonable attempt, according to a definition that will probably get fuzzier as time goes along, to locate the artist. Was it a good search? Did you try, real, real hard? Oh, you did? Well, just give the artist a couple hundred bucks and tell him to go away, even if you turned over thousands or tens of thousands of bucks by publishing or displaying or showcasing their work. Come to think of it, it’s probably a good thing for you that you couldn’t find the artist in your earnest search, or you may have had to split a big chunk of your profit. I’m sure not surprised that august organizations of publishers are not only not objecting to this Orphan legislation, but actually support it. So the first issue won’t be that a work was stolen, but whether or not someone thinks or decides that a proper search was made.
No one is going to have any problem locating Microsoft for software that was protected by copyright, but tracking down Jenny Smith who wrote a great song ten years ago and couldn’t get it produced or performed, or a series of short stories that came to light, or a painting that she couldn’t sell that’s simply incredible, well, what do you do? We looked. She wasn’t around. Just take it and use it. And if Jenny surfaces, well, give her a few crumbs, tell her she’s lucky it’s published and she ought feel “just swell” about it, and we’ll put the attorneys on her, and get it squashed if need be.
I’m not going to get into any fancy arguments about this, or be drawn into the intricacies of what constitutes a reasonable search, the problems of museums and others dying to display whatever, problems of the copyright office, this regulation or that, the bureaucracy, paperwork, forms, documents, ad nauseum that will be created. These are all moot points, and the point is the loss of rights, the incursion and taking over of property, stealing it with a fountain pen. Old story, eh? If can’t just steal it, create legislation, and “appropriate it” legally.
If you’ve gotten this far you must have some real interest in copyright, and possibly a good grasp of it. Does the average person? I say no. My experience clearly says no. I’m a writer, and I work with graphic designers and illustrators and other writers, helped publish several books written by other writers, etc. I’ve also helped track down works that were stolen off websites and published on other websites, photos of works taken and published, etc. Since the internet the average person thinks if it’s on the internet, it’s free to take, copy, publish, use, print, etc. In addition, I’ve met other creative people who themselves don’t have a good handle or understanding of their rights, of copyright, of laws designed to protect them. Is this orphan law going to muddy the water even more? My answer is yes, I think it will.
This law could pass, and it very well may. It’s politicians, it’s lawyers, it’s people and organizations out to be able to take (steal, by current definition) and use other people’s property, and protect them for doing so by law and regulation. Dark motives? Paranoid? Didn’t we just have a writers’ strike in Hollywood, because publishers and producers want to use writers’ works on the internet and not pay them - while there is payment for use in any other venue? Yes. So, this legislation may pass. Regardless, it is at root the loss of an individual right to keep, own, and decide what happens to one’s own work and property. So I stand with Henry Thoreau, Emerson, Mark Twain, and others, and it was Thoreau who said that because the majority passes a law, that doesn’t make it right. He was referring to slavery that was legal in this country, by law. This isn’t right either, and it couldn’t be any plainer or simpler than that.
Donald, I say this: too
Donald,
I say this: too bad. Wait for public domain.
All very well, how many, if any, works are entering the public domain? As it stands now, is seems to me that whenever we get close enough for anything to actually become PD, the rules change, the clock resets, and we all go back to waiting again.
You are right, in that these bills will increase the imbalance in the current copyright field. What really need to be fixed is the length of the copyright terms.
Take it back to how it was - require registration for all works that you want to be protected; a short period of protection (Ten years? Twenty? Certainly not the current ‘forever less one day’.), with a single optional renewal; and then let it pass into the public domain, for any and all to build upon, just as we build upon the works of those gone before us.
I oppose these bills. I am
I oppose these bills.
I am a commercial artist. These bills take the onus off the law breaker by giving them an easy defense. These bills do not allow the owner to regain their rights to control their work once an infringer certifies they “tried to find the owner”. Once the image is separated from the ownership information and is copied and recopied under the safe harbor provisions of these bills, the owner has lost all ability to control profit from their work. These bills put the full onus on the owner to pay protection money to multiple private corporations and also track down the multiplying illegal uses of the work (which will potentially explode now that everyone has a cool defense). The cost will exceed the return on the effort.
This bill places the creators of visual art in an untenable economic situation with reduced ability to defend their property. These Bills force this scheme into effect by 2013 whether or not there is a surefire way for users to find registerd works.
If you want these bills to pass, I suggest all those in favor tell congress to specifically exempt the visual arts from this scheme, and mandate the Copyright office to set up a method for private companies to accept copyright registrations on a VOLUNTARY BASIS. Similar to how ICANN works. Then we will test drive the system to see how much it actually costs users and how well the ability to find visual images works. THEN you can start clamoring for draconian orphaned works schemes.
Or you can adopt a Canadian style system where you pay for what you want. If the author can not be found, then pay the appropriate amount for the use you want to a chartered organization for redistribution. Similar to that used in the US for non-visual works. What! You don’t want to pay? Are you looking for a free lunch here? Wish I could have your (accounting, plumbing, research) services for free, but that is not likely to happen is it?
I’m an artist in the
I’m an artist in the animation industry, and I wholly support the orphan works bill (Senate version.) There has been a lot of misinformation and hysteria circulating through artist websites about how big corporations will steal your work, how you don’t have a copyright anymore, etc. etc. lies. If there’s anything I hate more than politics, it’s paranoid artists. If this bill passes, not only will it help bring out the historical orphan works so they won’t be lost, but perhaps it will deter artists from treating their works like sacred relics (much like the artist I met who tried to sue the crap out of someone who drew her picture on the sidewalk…in chalk) and actually help them to move on to creating something even better.
Not sacred relics- a hard
Not sacred relics- a hard investment of my time, for which I wish to be compensated. If you do not wish to be compensated for your animations, that is your perogative. Slap a CC-attribution commercial licence on it and relax.
If the artist asked the side walk artist to stop using his/her work and the side walk artist refused, then a suit is about all an artist has to enforce their rights. If the artist sued right out of the box without asking them to stop, I agree that is a little extreme. Now what if it had been Disney creating an animation of a side walk artist drawing my picture in their next blockbuster? What’s your position on that?