Searching for the Possible in the Orphan Works Debate

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.

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