I never like to disagree with my friends in public; particularly friends like Larry Lessig, who I greatly admire and who, through his 24-7 work as the first populist copyright reformer, made the existence of organizations like Public Knowledge possible.
But it would be irresponsible of me not to respond to his op-ed on the pending orphan works legislation that appeared in today’s New York Times. To summarize, Larry takes issue with the underlying framework of the legislation: that in order to get protection from the onerous damages provided by copyright law, somebody seeking to use a work under copyright who cannot find the copyright holder has to undertake a “diligent effort” to find the copyright owner. His core concerns are that 1) the “diligent effort” standard is not precise enough and therefore would create a class of hired search experts who would drain the budgets of libraries and other users; and 2) the bill is “unfair” to copyright owners because automatic copyright protection has given them the expectation that there is nothing they have to do to protect their copyrights.
Let me address each of these arguments briefly. First, the diligent effort framework for searches has been endorsed by all the major library and museum groups, as well as by smaller user groups like independent and documentary filmmakers. Contrary to what Larry believes, small and nonprofit institutional users do not want the government (in the guise of the Copyright Office) to define with specificity what a diligent effort is, because no two searches are alike. If the normally big-content friendly Copyright Office (or even worse, Congress) were to define precisely what is a diligent effort, it is likely to be one which would require the type of resources only the big companies have (they want to use orphan works, though few of their works are orphaned). Libraries, museums and small filmmakers are comfortable leaving the ultimate judgment to a court in the very unlikely event the owner of a work reappears and rather than negotiate a license fee, chooses to sue the user.
Second, nothing in the legislation is unfair to copyright holders. The purpose of the legislation is to match users with copyright holders and get the latter paid. If a copyright holder reappears after a user has done a diligent search, then the copyright holder is entitled to reasonable compensation. This is compensation that the copyright holder would likely never have obtained without orphan works relief, because the user would not have risked paying the huge damages provided by copyright law. Also, to the extent that photographers and other visual artists may be disadvantaged because the current text-based copyright registry system makes it difficult to find the proper owner of their works, the bills provide the exact relief Larry desires – a delay to the effective date of the law pending the development of a series of visual registries that will make searching for the owners of these works simple. As many of you know, Public Knowledge first proposed the registry idea in 2006 and has been the primary advocate for its inclusion in the bills.
Larry proposes as an alternative something that Public Knowledge wholeheartedly supports in concept: a 14-year copyright term, followed by a requirement that the copyright holder register the work and pay $1 to receive the full protection of copyright law. We like this idea because it could help to solve the damage to creativity and the public domain associated with longer copyright terms.
In practice however, this proposal has two major problems. First, it actually doesn’t solve the orphan works problem. Under Larry’s plan, works created between 1978 and today would be exempted at first. That’s a lot of orphans, and specifically a lot of web orphans. Even if that exemption were to expire, the 14-year initial copyright window would still give rise to orphan works, since many works cease being exploited after only a couple of years.
The second problem is more fundamental - and that is that right now, the proposal is completely politically infeasible. Regardless of the fact that nothing in Larry’s plan shortens the full term of copyright, the 14-year copyright plus renewal plan will be viewed as an effort to roll back term extensions. And as much as I would like that to happen, it won’t happen in this Congress, or in the next several Congresses to come.
After 40 years of uninterrupted strengthening and lengthening of copyright laws, we have before us an opportunity for significant reform. What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound.
When it comes to the uphill battle of copyright reform, even baby steps should be encouraged. They build the foundation for bigger changes in the future. And whether the reforms we can install are big or small, Larry Lessig deserves credit for each and every one.
Sohn obviously believes that
Sohn obviously believes that the right of corporations to rip off material outweighs the right of artists, musicians, etc to profit from their own creations. The “problem” about orphan works is that major corporations want to use whatever they like, pay very little, and eliminate any liability for their actions.
This bill does little in the way of identifying the copyright holder of a work. It is purposefully vague on that count. However, it is quite specific in limiting liability should the copyright holder object to an infringement.
This is yet another bill written for the benefit of corporations at the expense of individuals. Follow the money, people.
On what do you base your
On what do you base your belief that “major corporations” want this bill? In fact, the large corporate copyright holders don’t care very much. The impetus for this legislation is coming from libraries, museums, book publishers, arts educators, historians, archives and small independent filmmakers. These are institutions and artists who desire to use works, regularly do diligent searches to find the owner, and when they cannot find them, don’t use the work for fear of being hit with debilitating damages.
The entire purpose of this bill is for users to find copyright holders and for copyright holders to GET PAID. That fact continues to get lost by those opposing this bill. Nobody gets “ripped off” under this bill. Users get to use a work, owners get paid. Everyone is happy.
I wish it were that
I wish it were that simple: “Users get to use a work, owners get paid.”
Now WITHOUT the OW act, that”s thee way it’s supposed to work. The problem is that it is already difficult enough for artists to protect their work. Even after paying $45 to register a copyright, an artist needs constantly to scour the web and all public media to catch users in the act of stealing. And how do we search for visual work? A truly visual search tool does not yet exist. The odds are already stacked against us. This is far from “having nothing to do” to protect our right to profit from the artwork we create. (Not to mention the right to keep others from profiting without our permission.)
The “development of a series of visual registries” will not solve this problem. It will only serve to privatize the protection of copyright, further placing the burden (and expense!) of protection on the creator.
For this reason, copyright law is designed to favor the creator of the work—and thus, to support creative activity. This legislation threatens that delicate design.
We have to remember all of these so-called orphan works were created by someone. It is all too easy for a work to become “orphaned” without the creator’s knowledge. It can be the result of either malicious or ignorant use. Just one image post without authorship credit can rob an artist of that work forever. Any second-degree users might not be able to find the artist even after a “diligent search” (whatever that means.)
Beyond all of this, the idea of an “Orphan works problem” is a myth. There is no sea of under-utilized artwork tied up by the restrictions of copyright law. Instead, there is a demand for free art. This legislation does not promote the distribution of creative work. It is supported by non-creative people who do not want to pay for creative work. As a medical illustrator, non-profit education organizations like museums and book publishers make up the majority of my clients. These are the organizations who support my art. By “support” I mean “pay for.” I would not be able to create if I weren’t paid. Sure, everyone would rather get something for free. But, please let’s call this what it is.
A society that doesn’t support art is destined to lose it.
Fortunately this debate of
Fortunately this debate of who wants what can be grounded in formal comments from many participants. The Library of Congress got very interesting and thoughtful comments and replies as they tried to figure out what to propose.
The general page is here: http://www.copyright.gov/orphan/
and comments are here: http://www.copyright.gov/orphan/comments/index.html and replies are here: http://www.copyright.gov/orphan/comments/reply/
I strongly recommend these. It could raise the level of conversation considerably.
-brewster Internet Archive
I don’t like the
I don’t like the implications of this bill. As an artist, I find the ‘registry’ idea extremely offensive for a number of reasons, but there’s one I’ve not seen mentioned: it sounds an awful lot like yet another big step toward creating a police state. To put it bluntly. Like we need that?
And the “whole point of this legislation is to pay artists for their work” sales pitch doesn’t jive, sorry; it is not coming from artists.
Being curious about the driving force behind this legislation, knowing copyright laws pretty much work fine for artists the way they are, I have to note that most conspicuously, copyright laws do function well as a legal tool benefiting those who buy copyrights and patents to the work of others (and sometimes bury them): copyright & patent laws can be and have often been used by corporate interests in ways that stifle and suppress creativity, innovation and collective/collaborative problem-solving, blocking the development of efficient and brilliant design that can be utilized (that would cut into profits).
The proposed legislation ‘looks’ progressive, ‘looks’ like it jives with the open-source, free-ware, crowd-sourcing etcetera movement, but I think it is more like the opposite; it almost appears designed to counteract that movement, which has shown great potential for effectively circumventing the inefficiencies of proprietary/copyright/patent bottlenecks & planned obsolescence sorts of issues which are driven by a market-based domination of the development of design, innovation, and ideas.
So far I have not seen my questions about how this legislation would impact that, and why, articulated or addressed anywhere, but below is a clip from an Illustrator Partnership e-mail/newsletter about the Orphaned Works legislation, including links to check out, for anyone interested. I like that they are advocating a more open airing & public examination of the legislation before it is put up for vote. -Crowings +++++++
“The Orphan Works Act of 2008 … will expose your art to commercial infringement. It will include work from professional paintings to family snapshots. It will include published and unpublished work. It will include any image that resides or has ever resided on the internet. It will force you to register every [thing] you do with privately-held commercial registries. It will make all unregistered works potential orphans.
This radical change to U.S. copyright law will shift the burden of diligence from infringers to rights holders… You should not have to pay businessmen to keep the work you’ve created.”
To learn more about the Orphan Works Bill, listen to the interview with Brad Holland:
mp3 version: http://www.sellyourtvconceptnow.com/orphan.html YouTube version: http://youtube.com/watch?v=CqBZd0cP5Yc
For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Lessig’s main point in the
Lessig’s main point in the NYT editorial is that the legislation inadvertently expands the scope of reduced copyright infringement beyond traditionally orphaned older works to more current “unintentionally orphaned works” since the end of the opt-in standard in 1978, for which the cost of a diligent search will be high while incentives and conditions exist to prevent it from being effective.
Insufficient data exist to conduct an effective search, which makes searches costly. Because the likelihood of a penalty for overlooking an owner in a search are considered rare - unfound owners are not expected to appear frequently with a legal challenge after a search - there’s an incentive by users to undersearch the related content property and face these occasional risks.
This shifts the burden of avoiding infringement away from users onto original copyright holders - primarily the smaller and independent ones who can’t afford ongoing systematic countersearches to verify if their material is being used illegally, relying instead on the current opt-out policy to protect them with incentives imposed on users to avoid serious infringement penalties.
Lessig agrees that orphaned works constitute a substantial waste of unused resources and has been attacked shamelessly with ignorant anti-capitalist slurs for encouraging widespread dissemination of their closely related works in the public and fair-use domain.
However in this case, Lessig is understandably wary of a traditional political constituency with a powerful economic hold over who produces intellectual content under what conditions, which exploits the protection of copyright - a government regulation - as a ruse to undermine the opportunities for legitimate creators and owners of content to compete on a level playing field in the digital age, so vigorously defended by Lessig.
Should a “copyright search expert class” emerge, the only reason to pay their high fees for costly searches would be to shield users from potential legal challenges - otherwise, doing a search is pointless, so the legal standing of a search acts as the offset to a legal challenge from an overlooked owner. It could easily become an insurance racket designed to oversell infringement protection to users at the expense of content creators and owners.
Where supporters of the new legislation see the glass mostly full of new opportunities for abandoned works, Lessig sees the glass mostly drained empty from a new wedge of exploitation advanced by the same parasitic constituency of “middlepersons” which is losing its grip in the digital age over the substantial share of revenue extracted from original creators and owners of intellectual property.
This is sponsored by Howard
This is sponsored by Howard Berman, the Industry congressman. So don’t tell us this isn’t a corporate scam.
This makes it cheap and easy for corporations to rip off artists and then pay off some niggling compensation that they and their lawyers determine is “reasonable” if they get caught. I’m sure it’s convenient for libraries too but the rights of artists should not be sacrificed for someone else’s convenience.
“Diligent” and “Reasonable” under the Act will be footballs for lawyers for big corporations to determine how they like. It will make it easy and cheap for companies to use work without worrying about the consequences.
Dear Gigi; I’m afraid you
Dear Gigi;
I’m afraid you are mistaken when you state “On what do you base your belief that “major corporations” want this bill? In fact, the large corporate copyright holders don’t care very much.”
Two of the most outspoken proponents of this bill are Google and the American Association of Publishers (AAP; representing the publishing industry). Interestingly, AAP was originally opposed to the bill and then did a flip-flop, coming out in its support. I can only speculate about the reasons for their reversal, but I suspect they realized that they had little to fear from the bill since published books and magazines are rarely separated from their identifying information. It’s highly unlikely that a book could ever be “orphaned”. Furthermore, they probably see this as an opportunity to snatch up free content from the Web and other sources and sell it back to the rest of us.
As I said, this is pure speculation about the AAP. However, Google has been much more forthright about their reasons for supporting the bill. They do indeed see this as an opportunity to snatch up orphan works and make them available, for a fee of course. At the Orphan Works Roundtable held in Washington on July 26, 2005, a representative from Google stated that “Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable. In fact, I think that’s why most of us are here. We do think there is a lot of value in these works (p.119).” And “we expect that [Google’s] use of these orphan works will likely be in the 1 million works range… we know that many of them will be in the public domain, that most of their authors won’t care. But there are a few that really will care and they will come forward and it will be extremely inefficient for us (p.166).”
In other words, Google wants the government to, in effect, legalize infringement of these works because, God forbid, some rightful copyright owners might step forward and make Google’s business plan “inefficient”.
As you state in your article, the original impetus for the Orphan Works Act came “from libraries, museums, book publishers, arts educators, historians, archives and small independent filmmakers.” However, these groups have raised the issue of orphan works several times in the past and Congress quickly dismissed it every time. It took Congress 14 years to contemplate and finally pass the Copyright Act of 1976. Before passage, they considered every consequence of the Act, including the “problem” of orphan works. They considered a system whereby copyright owners would have to periodically renew their registration to retain protection, but rejected this because of “the burdens and expenses of renewals”. Ultimately they concluded that ”the advantages of a basic term of copyright…outweigh any possible disadvantages.” H.R. Rep. No. 94-1476, at 136 (1976). This time around, however, the Orphan Works Act has steamrolled through Congress with very little opposition. I can only assume that this is the result of corporate backing that simply didn’t exist in 1976.
Furthermore, if this was just about libraries, museums, and archives, then the use of orphan works would be limited to non-commercial, non-profit uses. But Congress has broadened the bill to include ANY use, non-profit or commercial.
As you might have guessed, I belong to some of the “small copyright holder groups” that you mention in your article. These “small groups” happen to include most of the major associations of artists, illustrators, and photographers in the U.S. (for a partial list, visit: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273 ). The reason we’ve been very vocal in our opposition to this bill is because we are desperately fighting for our very survival. This bill will not result in artists getting paid, because there is no technology in existence that can match an image to its rightful owner by the content of the image itself. Instead, it will result in widespread “orphaning” of millions of images that have appeared on the Web or in print any time within the last 30 years (since the Copyright Act of 1976 eliminated the need to affix a copyright notice). This will dramatically devalue our current body of work and will create an enormous pool of “public domain” art that will compete with us for new commissions.
This isn’t about Disney and other corporate interests trying to further extend their copyright protection. If you find a picture of Mickey Mouse, you know darn well who made it and how to contact them. This is about the “little guy” - the independent artist or photographer - trying to protect his life’s work from the corporate interests that wish to profit from that work with no compensation to the rightful owner.
(Thank you
(Thank you Brewster)
-I’ve read a number of the letters on the Copyright Office webpage that Brewster sent a link to.
Although I said ‘artists are pretty much okay with the copyright laws as they are’, something about that was bothering me. Being an artist, writer, and closet/guerilla historian/librarian/educator, I am quite appreciative of the concerns of these people, and know current copyright law can be prohibitive and even act to suppress good work (work that may be important but produced with limited resources); the truth is I am uncomfortable with current copyright law in that sense.
I couldn’t put my finger on all of exactly why this legislation looks like it does not solve that problem and will only exacerbate the issue. Thanks to Brewster I found among those letters one that explained and clarified a major aspect of why.
In his letter, Kenn Rabin explains how the legislation focuses rather uselessly on orphaned works when something clarifying and protecting the purpose of ‘Fair Use’ in copyright law, rather, would more successfully solve the problem. In part:
“Again, an example (that is typical of what happens all the time): I am working with a filmmaker right now who wants to use some critical network news footage in a film for PBS that may not be allowed, simply because a copyright holder may threaten a lawsuit in what is clearly a legitimate Fair Use case – but since the filmmaker cannot afford to fight a lawsuit, they may have to back down and not use a very historically important clip. Since Fair Use is only a defense if one is sued and not a defense against getting sued, it is often of little use to filmmakers without major financial resources. The filmmaker is licensing much footage from the source, this is just one piece of footage the source doesn’t want the filmmaker to use, because it shows that they knowingly distorted a story – that distortion is critical to the filmmaker’s case. The filmmaker is likely to win a lawsuit, but can’t afford the risk of one.
I don’t think the proposed legislation addresses the actual problem creative types (artists/educators/historians/innovators) have with current copyright law at all.
If there were to be a registry, it’s compilation from the ‘user’ (finder) end seems more sensible and to the point. It’s not the brainchild of artists seeking to protect their work; the purpose is to archive and make orphaned works accessible to the public, for fair use, right? Those who may have any claim to orphaned works could, incidentally, search such a registry. This would be much more practical and keep the burden of ‘diligence’ on the user end, which seems most appropriate.
Rabin’s full letter is here: http://www.copyright.gov/orphan/comments/OW0030-FMS.pdf
Lloyd Shugart has left a new
Lloyd Shugart has left a new comment on the post “The Fight Against the Devastating Consequences to the Orphan Works Act Continues”
Tammy,
I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.
I am the POSTER CHILD for why this is bad for the copyright creators.
I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD.
US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.
My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”
So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.
As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.
How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.
Propet USA v. Lloyd Shugart WD WA. Federal Court
Lloyd Shugart
full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/
April 30, 2008
United States Senate Committee on the Judiciary 224 Dirksen Senate Office Building Washington, DC 20510
Sent Via Facsimile
RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913
Dear Distinguished Members of the Committee:
Thank you for the opportunity to comment on the proposed Bill. Our law firm focuses extensively on the creative arts industries and represents both manufacturers and individuals through counseling, registration and litigation. After a thorough review of the proposed Bill, the following comments are offered from a legal professional who would be “in the trenches” if this Bill were to pass.
Nullification of the Copyright Act of 1976
It was a lonely search. by
It was a lonely search. by Lloyd Shugart on Jun 3rd, 2008 @ 10:56am
http://www.jpost.com/servlet/Satellite?cid=1202742156853&pagename=JPost%2FJPArticle%2FShowFull
According to Marilyn Henry, author of Confronting the Perpetrators: A History of the Claims Conference, the process of reclaiming looted art has always been one of the most prickly of all Holocaust restitution issues.
“Countless Nazi victims spent decades trying to find artworks that once belonged to their families. It was a lonely search. The burden was on the victim to find what had been taken, to prove it belonged to him and to convince whoever had it to give it back,” she says from her home in New York.
“Imagine looking for a needle in a haystack, finding the needle, and being told by the haystack owner that you had to prove you owned the needle before the war, and then convince him that he should return the needle to you.”