Orphan Works: Thinking Out Loud on Notice of Use Archives

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.

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