Orphan Works: Separating the Orphans from the Difficult to Find

Here I go again, trying to be constructive. But before I get there...

This Isn't About You

I'd like to know what it would take to convince you, a visual artist, alive and creating today, that orphan works policy was not meant to apply to you? There are clearly tens of thousands of artists who are being scared out of the woodwork to write their representatives to stop orphan works legislation. If you're one of these artist, who are savvy enough to know how to go to a website and click a button to write your member of Congress, then more than likely, if someone wants to use your work, they're going to find you. Why? Because you exist. You're with-it enough to be part of this debate, which in all likelihood means that after a user puts effort into finding you, you will actually be found.

That said, you, the independent visual creator, have problems, regardless of orphan works. You're not impossible to find, but finding you may take some work. Every time it's difficult for a potential user to find you, you lose. You lose because the user decides it's going to cost too much to bother doing the research to find you, she gives up and doesn't use your work; -or- if the user is a bad actor, she doesn't give up but decides that it's worth the risk to instead infringe on your work. Either way, you're missing out on potential income.

Still, you're concerned that someone's going to use the orphan works carve out to cheat the system and use your work without permission, making your pre-existing problems all the worse. I get it.

But what if all of this effort, time, and money spent over the past three years scaring visual artists into legislative action, was instead spent solving the key problems that the constituency is complaining about? One concern--being found--we're trying to address with visual registries. Check! The other concern, which orphan works does not address, is making formal registration easier. Creating a copyrighted work is easy, I'm doing it with every word I type. What's hard is actually filing a formal registration.

The Problem of Registration

Part of this problem stems from how difficult it is to manage your copyrighted works. It's costly to register your works and because of that, you don't bother--even though registering is essentially an "insurance policy" that could yield you $150,000 per infringement in case of emergency.

One might say, "Well, the registration fee of $45 per work is a fairly low cost when you realize it could protect you on the back-end with statutory damages. After all, if you want to sue down the road, you're going to have to pay that $45 registration fee anyways before you can claim infringement." But when you're a photographer that has thousands of photos, even group registrations can be cost prohibitive, not just because of the filing fee, but time and money it takes to fill out forms. And besides the statutory damages, what's the pay-off? Very little, because the registry is almost useless for matching a work with its owner. That second part is why we've promoted the visual registries concept in the orphan works policy.

Clearly visual registries are only one part to solving non-orphan owners concerns about orphan works, but maybe they're not enough. When an artist voluntarily registers with one of these services, they're availing themselves to the public so that they can be found. Being found may be enough for some, but for others, they still want the security of the formal copyright registration. Being able to be found is not enough, perhaps, because still there exists bad actors, and visual registry registrations have no formal weight under the law. I'm not suggesting that we give them legal weight; rather, I'm asking why it would be all that difficult for the visual registry to submit that same information to the formal Copyright Office Registry.

Today, you've got to register your copyright by mail. For the past few months, the Copyright Office has been running a beta version of online submissions. The online submissions is about to go publicly accessible next week, July 1. The portal, dubbed eCO, will offer some new tantalizing features:

  • Lower filing fee of $35 for a basic claim;

  • fastest processing time;

  • earlier effective date of registration;

  • online status tracking;

  • secure payment by credit or debit card, electronic check or Copyright Office deposit account;

  • and ability to upload certain categories of deposits directly into eCO as electronic files.

This is a huge step forward for the Copyright Registry. But with all due respect, we are in 2008. Online submission, uploads, and secure payment transactions are old news. I mean, even the FCC accomplished it's electronic filing system years ago (although they have yet to progress since) and they host and index multiple filetypes for free!

Shouldn't we be expecting more of a Copyright Registry, the formal record of creative works in the United States? Yeah, registration isn't required here anymore, but is it wrong to encourage? For those who would like to put forth the effort, shouldn't we be making this as easy and cheap as possible? Shouldn't we be making it easy for these owners to record when rights change hands? Owners should want the full protection of damage rights, and users should be able to use those records to find rightful owners.

I suggest that the Copyright Office, as part of its "re-engineering initiative," develop an open API to allow other services to write to the registry. Yes, of course there would have to be guidelines, write permission parameters, and safeguards. Services like visual registries would be able to take advantage of an API, and allow owners to submit their works to the registry easily, without burdening the owners with the tedious process.

Yeah, the Copyright Office probably would still charge a fee, but it would be way lower than it is now because all you're doing is adding records to a table and passing around bits. Services that took advantage of the API may even be able to subsidize the formal fees with fees other services. A competitive market in these services would develop, dropping the costs even more. Think: website domain names, where registrars are essentially selling the same basic thing, but all varied prices and with lots of other useful features that owners would likely want. Yes folks, I love the DNS.

It's not far-fetched. It could make a world of difference to have a robust record of formally copyrighted creative works. It's what the visual registries will be asking for. It's what owners of visual works should be demanding (or should have been demanding all along). It would go a long way to assure owners that they can be found, give them the tools to easily protect their works with the big stick of statutory damages, and dissuade them that their works will inappropriately be dubbed orphans.

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