“If you want to go ahead and create an orphan work, be my guest!” (Update)

Lawrence Lessig weighs in on the current debate regarding the pending Orphan Works bill in Congress. In a NY Times op-ed from May 20, 2008, Lessig writes: “Congress is considering a major reform of copyright law intended to solve the problem of ‘orphan works’ — those works whose owner cannot be found. This “reform” would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.”

He continues: “The bill … would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.” Similarly to the Illustrators Partnership’s position, Lessig makes the pending chaos and unfairness quite palpable and real. Read his complete opinion here.

April 26, 2008

Last week, two orphan works bills were introduced by both the U.S. Senate and the House of Reprensentaives that may bring significant change to current copyright law. This has put proponents of the bills (Public Knowledge, The Copyright Office) against those opposed (The Illustrator’s Partnership).

According to Public Knowledge, “The concept behind orphan works is simple: after a fruitless search to find the rightful owner, a searcher may the use a copyrighted work without the fear of hefty copyright infringement damages.” According to Public Knowledge, all visual artists, photographers, graphic designers and illustrators have to do is regsiter their visual works with, most likely, a for-profit registry system (for profit due not only to laisez faire, but also because the federal government doesn’t have the resources to maintain and operate such a system. No word yet on how much this would cost, but we can bet Google is on top of this).

“Safeguards are put in place to ensure that users put ‘diligent effort” into their “qualifying searches.’ The Copyright Office will maintain and make available helpful search guidelines from owners and users in the industry and if challenged a court will consider whether the user’s actions were reasonable and appropriate for the circumstances and whether the user employed the applicable best practices. This will promote the creation and development of search guidelines and will help to match more orphans with their owners. The Copyright Office will also have to certify market-based registry services for visual art.”

The Illustrator’s Partnership has a radically different perspective on the bills than Public Knowledge, claiming that these bills essentially gut-out existing copyright law:

“[The new proposals] would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them. Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore you would never again be able to guarantee a client an exclusive right to license your work. This means your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.”

Regarding orphan works causing actual problem for academics, librarians, and others:

“In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.”

“Lost in the swamp of debate over ‘reasonable searches’ and ‘reasonable fees,’ no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work – such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:

Carson: Copyright owners will have to register their images with private registries.

Holland: But what if I exercise my exclusive right of copyright and choose not to register?

Carson: If you want to go ahead and create an orphan work, be my guest!

The Illustrator’s Partnership has a great Q&A detailing their strong opposition here.