In the House version of the orphan works bill there is a provision that creates a “notice of use archive,” or NUA. The idea is that after a search, but before use, a user of an orphan work would have to file a statement with the Copyright Office that she intend to use the work.
In this statement, she’d have to include a description of the work, any ownership info that she knows about the work, a summary of the search that was conducted, and her contact information. The Copyright Office would charge a fee for the service, probably at a significant price per page, as it has said in a letter to Congress (PDF).
Problems with NUA
We’ve previously said that this provision is needless and redundant, and for the record, it still is. Both bills already require a user to maintain documentation of their search, and the pleading requirements push that info at the front of discovery. Not only that, but these additional hoops can be expensive— not only just the per-page costs of filing, but the fact that a when a user is filing an official document with the federal government that will have evidentiary and other legal ramifications, inevitably a lawyer is going to have to see it. Both add a lot of costs, which may not have been the intent of the drafters, but it was the effect. And then when you consider that collecting institutions like some libraries and museums have hundreds of thousands of works, these NUA filing costs become a huge tax on shedding light on an orphan.
Additionally, the goals touted for the NUA don’t match up with provision. The first goal is that it’s going to help users realize what they should be doing for a search—commonly called a “teaching moment.” While we think this is a positive goal and one that orphan works legislation as a whole generally addresses, the provision doesn’t specify precisely how these summaries are to be documented. We think that best practices are the better place for this kind of thing—especially since the bills already require best practices for documentation—and they’ll be more flexible as every search for a work will be different.
The second proposed goal is that it will work as a speed-bump to prevent bad actors from claiming that they conducted a qualifying search. I’m not a fan of legal or technical speed bumps, remember, the broadcast flag was called a speed bump. The speed bumps proposed in this town in the area of copyright policy tend to be ineffective, and I think this provision is a good example. The NUA provision requires a summary of a search that was conducted, but there’s nothing that could guarantee that the summarized search was actually conducted. Deciding those facts has to be up to a court. And if the over-arching goal of orphan works was to remove the hurdles that stop good-faith users from using orphans, why are we putting the burden and costs back on all the good-faith users?
The fact is, bad actors are bad actors—they don’t bother jumping through detailed legal carve-outs, they just commit the bad act. Orphan works opponents suggest that bad actors are going to use orphan works to evade high statutory damages, and the more legal speed bumps we embed in the policy, the less likely a bad actor is going to take advantage of it. But the truth is that the more speed bumps are on a road, the less likely that anyone will use the road, not just the bad actors. (I wish I could take credit for that idea, but it all goes to Jonathan Band).
Can NUA be fixed to actually serve a purpose?
We’ve supported removing the provision for all the above reasons. But that doesn’t mean we stop thinking about better ways to accomplish the goal it should have set out to accomplish—making sure owners are matched up with their work, and the users who want to pay to use the work.
Here’s an idea that is a mash-up of ideas from talks with those representing various artist communities, Megan and Stu, I’m looking at you here. What if the NUA was actually more of a “lost and found”? An important thing with a lost and found is that you want to encourage and make it easy for people to do the right thing and to use it. Bad actors aren’t going to bother, they’ll just steal what they’ve found.
A lost and found must be really easy to use—that means limiting the requirements while making them more useful. Have the user submit an actual copy or specimen of the work, maybe a short description, and their contact info. That’s it. Nothing difficult that would require a user to run things by the eyes of an attorney. Additionally, a copy of the work will help tremendously when an owner comes along to match his work at the lost and found. Imagine if a user had just submitted a description of the work (as the House’s NUA requires today), how much confusion there would be? Here’s a potential description: “Photo of the Statue of Liberty.” Great, how many photos fit that description, and how many photographers are going to come a long honestly claiming they have a photo that fits that description?
Basics of a Lost and Found Model
So, do we let anyone look in the lost and found? Some proposals suggest we make the contents open. While this may at least initially may be appealing, thinking it through a bit more brings up two snags with “open archives.” One is the “unscrupulous owner problem, or at least those who pretend to be owners, that are eager to claim ownership of a work and extract money from a user with money ready to hand out. It may sound far fetched, but if you ask those in the museum community, it happens all too often. So, we first propose to keep the users’ names and contact info anonymous to public view.
Another is the bad faith user. By leaving this archive open, the lost and found would act as an open orphan archive—that one may presume an owner can’t be found. Unscrupulous users may be willing to take the risk that an owner won’t return, even though they didn’t do a search themselves. We don’t want that, and owners especially shouldn’t.
So, we suggest we make all of the lost and found dark—much like how real lost and founds work. I mean, think about it—only the guy in charge of the lost and found who sits at the window knows what’s in the box below the desk, right? That’s how this system would work, users upload a copy and their contact info. Owners would submit a copy or proof of ownership of their work to see if anything in the lost and found matched. If something matches, the owner gets the contact info of the user.
To make it practical and inexpensive, this system in the orphan works context would be online and digital—much like the proposed visual registries. A user would upload the image and their contact information (maybe that contact info is already in the system as the user may have a persistent account with the service). None of that info is publicly available. Maybe an owner is curious if a user has tried to find them, or maybe they’ve seen their work used without permission and they want to see if the user was on the record as claiming it as an orphan, the owner would submit their work to the system and the system would tell the owner of any previously uploaded images that match theirs, and the contact information of the user.
There every reason to have these lost and founds as part of the contemplated visual registries. Every time a user or owner uploads or assigns an image to be used with the system, the system would compare it against everything else already in the system. If there are matches then, the person is notified. That would cut back on a lot of the formality, and ensure that images don’t get caught in the cracks.
More Details
There are some more nuances to this lost and found as well. The non-commercial-ish safe harbor in the bills that already applies to libraries, museums, archives, public tv, etc., should also exempt them from this lost and found. These orgs already to the right thing, they have systems in place, let’s not put more on their budgetary shoulders and exempt them from this lost and found system.
Isn’t this proposal as expensive to users as the NUA? I would argue, no. Minimizing the requirements, no summary, no descriptions, etc., would dramatically reduce costs because the user wouldn’t have to run their submission by an attorney. These will be online services, and as such they’d only be dealing with digital submissions, which dramatically reduces costs. Last, there’s no reason these services have to have submission based transaction feeds—they could just as easily have accounts that perhaps for a low annual fee allow for unlimited submissions—again, think about a free Flickr account vs a PRO account.
So, just some ideas here, trying to bridge gaps and making a workable solution for all parties. We’ve submitted this suggestion to the House. We’re still hopeful that they remove the NUA all together, but if they aren’t, this may be a compromise proposal people could live with.
Hey Alex: The “lost and
Hey Alex: The “lost and found” idea is very interesting, and similar to another idea proposed by Susan Kornfield and Jack Bernard (two respected mentors of mine) during the 2005 Orphan Works Initial Comments period. As a solution to the orphan works dilemma, they advocated for the adoption of “fostered works,” where users give notice of their activity, deposit a copy of the fostered work, etc. See comment OW0613-Kornfield at http://www.copyright.gov/orphan/comments/
tvol, Thanks for the heads
tvol,
Thanks for the heads up. We too suggested a kind of notice of use requirement in the initial round. In it, we were anticipating that a follow on user could “piggyback” on another’s search if it was reasonable to do so.
But thinking it through some more, the problem with outward notice is that it has the high likelihood of acting as a honey pot for bad actors.
While the proposal above may be technologically far fetched, I’m encouraged by new services like tineye that I found out about yesterday:
There has been a lot of
There has been a lot of noise about the Orphan(ed) Works Bills of late. Mostly this has been about “works of art” (music, photos, video…). I am interested in the other works that can be copyrighted such as technical illustrations, drawings, models, architectural designs - there is specific wording in Article 17. These then become subject to the same classification as an Orphaned Work? If this is the case, as I suspect, there is a whole world of other rights holders who should be speaking up!
I for one am an inventor/designer and regurlarly sketch my ideas on paper, and on the computer. I do not want to have to register every paper napkin I happen to doodle on!
I empathize with the artist as well since I am an underwater videographer as well. My works are mine and I do not want to go through the expense and time of registering with any sort of private institution - this is an unwarranted demand to place on the artist (and in my case designer as well).
My stand on this issue from a technology and artistic standpoint is to leave well enough alone. The current law is and has been sufficient to protect my rights in the past why not in the future as well?
I do not understand your support of this obviously special-interest bill. I have read your responses in the PK blog on this issue and have a pretty good idea how you will argue and reword my arguments. So I do not expect a response from you - I just wanted to point out that there are others who will be hurt by this legislation.
I have already corresponded with Barbara Boxer who chairs the subcommittee and Diane Feinstein voicing my negative vote for this bill. Ms. Boxer kindly informed me that the bill already passed the subcommittee on May 15, 2008.
Just another way to look at this bill. Think of the corporations and special interests now that would like to see this bill passed!
Muckdiver, Thanks for your
Muckdiver,
Thanks for your comment. I’m sorry if you’ve read my replies as rewording of someone’s comments, I hope I have not done that to anyone’s statements, it surely was not my intention.
To the extent that architectural designs and technical illustrations are protected under copyright law, then yes, orphan works would apply to them as well. And yes, those in the technical illustrator industry, like the medical illustrators, have apparently been made aware of the legislation. Unfortunately, what they’ve said (and perhaps what they’ve been told) about orphan works legislation is, I believe, generally false and misguided.
But to your specific question, and hopefully I’m not taking this out of context:
Maybe it’s not a problem for you and no one is having difficulty finding you. Maybe no one is trying to use your computer generated or “napkin generated” sketches, at least that you know of. Your works are not orphaned, but what about those works that are? I guess the bigger question is, Muckdiver, what would it take for you to acknowledge that orphan works are a societal problem?
I’ve written a lot on this, as have others. If what I write is not enough for you, how about those who are presumably more well respected…
Is it enough for U.S. Senators Leahy and Hatch to say there is a problem:
Is it enough for U.S. Representative Berman to say:
Is it enough for U.S. Representative Lamar Smith to say:
Is it enough, after receiving letters with the above comments, for the Copyright Office to conduct a study of the problem for a year, having heard from all interested parties on the record, and to have concluded that:
The government and an outpouring of submissions from experts in their respective fields have said that orphan works is a problem in the US. Culture is needlessly being tied up by “must-have-permission-from-the-owner-or-infringe-and-possibly-incur-$150,000-damages” copyright. And as you’ve read above, non-commercial uses are not the only culturally significant, clearly Congress, the Copyright Office, and other experts believe commercial uses are significant as well.
So, sorry for picking on your quote, but just because you don’t have a problem with the current copyright law doesn’t preclude other creators from being stifled because of it.
If you’re not willing to acknowledge that orphan works is a problem, there’s nothing I can write in a blog post comment that will convince you. There’s then no use reading the rest of what I’ve written.
Okay then, maybe you can be convinced, or at least you’re willing to some arguments. Thank you for at least being that open-minded.
If you’ve gotten this far, you’re at least acknowledging that orphans exist. The next question is how to you write into law the scenario of why you can’t find an owner? There are numerous reasons why an owner can’t be found, they may be dead, they may have had no heirs, they may be a corporation that went out of business, they may have never registered, they may have never recorded any transfers of ownership, and the list goes on into incalculable permutations. How do you write a nice clean law that encompasses all of that?
Well, the Copyright Office proposed that you don’t. Instead of listing out all the reasons you can’t find someone, you put the responsibility on the user and require them to do something, like try really hard to find the owner. Congress thought that that was a good way to address the problem, and now we have two consecutive Congresses building from that model.
After that, users have to be ready to prove that they’ve tried really hard, and conducted a qualifying search to a court if it comes to that. They also have to be users that are ready to pay for their use, as owners must be reasonably compensated in the unlikely event that after an exhaustive search, they surface.
Reasonable compensation doesn’t mean some discounted rate, as some have suggested. It means what the parties would have agreed to had they been able to find each other before use of the work. By the way, that “use of the work” is always referred to infringement in the legislation, so no exclusive rights are being given away here—the idea is just shielding a user from high statutory damages, if they were even available.
So, in the case of designs or blueprints, don’t those types of works generally have the architect or designer’s name on them? Aren’t there at least a few registries of licensed architects or designers? Maybe these designers even formally register their designs. How likely is it that these creators cannot be found after a diligent search? And if they cannot be found for whatever reason, what’s wrong with making sure they are compensated for the use of their work?
You also wrote:
Fine, but orphan works doesn’t ask you to lift a finger. Honestly, I wish it would, but it doesn’t! Don’t do anything more than you do today. If you formally register your works with the Copyright Office, great. If not, great (but if you don’t, don’t pretend you’re missing out on statutory damages, because by not registering 3 months after publication under today’s copyright law, you were never eligible for them). Nothing in this bill requires you to do anything more than what you do today. No private or public registries. Nothing.
The reason these visual registries discussed in the bill is because we proposed them as a solution to the problem that visual artists have been raising, that the current Copyright Registry is too expensive and woefully inadequate. Now that we’ve suggested a solution to the problem, we’re being hit over the head with it and told that it’s a problem.
“Yeah, but if I don’t register with your proposed visual registries, some user is going to say they searched there but didn’t find me, and then I’m considered an orphan,” you might say. Okay, well, how is that any different than today if you, the owner, don’t register with the Copyright Registry? Today, if I don’t find your work in the official copyright registry, does that mean my work is over? No. I’ve got to do more than that, because most works are not registered, and in the future orphan works world, most works may not be registered either, so courts are not likely to say that a simple registry search is sufficient.
I’ve written to much already, but I just want to be clear here: I have no desire to ruin anyone’s livelihood here, especially those who make a living from their creativity. Look at every policy we work on here at PK, we’re pro-creator on everything from professional to user-generated. Today’s copyright law is stifling creators, maybe not you specifically, but many others, from exposing lost works. Works, as Mr. Berman said above, may not make it to the public domain because they were long forgotten before they deteriorated. Orphan works is a way to let those works be copied and enjoyed by the public.