Guest Post: Is the Copyright Office Inflating the Need For Orphan Works Legislation?

In his 2011 article, “The Shrinking Orphan Works Problem,” Joseph Esposito finds that “The number of orphan works is shrinking because books that could have been orphans are being researched and their copyright owners identified or they are being found to be in the public domain.” The irony is that our increasingly-digitized world is making it easier to find authors and owners of works. And because of these digitization projects performed by groups like Google and the HathiTrust, more and more groups, including publishers, have stronger incentive to devote the time to these searches and their own digitization efforts.

For digitization of special collections, or mass collections, the Copyright Office instead suggests its proposed extended collective licensing (ECL) framework, which would also be of little use to Libraries, such as with the publication of unpublished works or ephemera. Additionally, the Office itself believes that an ECL for orphan works “would end up ultimately as a system to collect fees, but with no one to distribute them to.” Libraries have found their answer in the Fair Use doctrine which they find more tailored to their need to digitize special collections. Their Code of Best Practices in Fair Use along with the HathiTrust litigation, have helped delineate for libraries which orphan works projects will subject them to greater risk of infringement litigation where a “reasonably diligent search” standard is not viable for mass digitization of special collections.

Waiving the Fair Use Flag

The report acknowledges that fair use jurisprudence has moved in a direction that favors the use of orphan works. But the Copyright Office does not want to evoke any confidence in fair uses, noting that it is “a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.” The Copyright Office’s position also minimizes the actual effect codes of best practices in fair use have had on various industries, such as libraries, archivists, educators and documentary filmmakers. Libraries are the first in line to disagree with the Copyright Office’s assessment, claiming the Office is ignoring the fact that fair use is a better remedy than anything the Copyright Office has proposed for preserving our cultural heritage, and the only thing close to keeping up with our rapidly-changing digital landscape.

Many say there are other more realistic measures the Copyright Office should be taking that don’t require legislation that draws so much opposition-like better record keeping, making its records more accessible online, offering search assistance to users on the Internet, allowing digital recordation works without registration, updating the Catalog of Copyright Entries to include a full registration record, including assignments and other recorded documents so it can finally be used for searches involving the ownership of rights.

What can artists do to avoid the orphan works dilemma if they don’t wish to register all of their works on a regular basis? The first line of defense is keeping your metadata and EXIF data up to date with some way to contact you, though this isn’t foolproof. Opt in to Google’s enhanced image search and use descriptive file names, or utilize other licensing systems, such as that of Creative Commons. Or, even better, register your works with the Copyright Office. It’s easy, cheap, and you’ll be contributing to the record of our cultural heritage.

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Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair  and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.

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1 comment on this post.
  1. Junk:

    You made some good points but your comment ” It’s easy, cheap, and you’ll be contributing to the record of our cultural heritage.” is way off the mark as it relates to individual creators who would have to copyright their works.

    I represent an creator who has 8,000 creative works. At $35 a registration, the cost is $280,000. Getting documentation of first publication will take hours of research traveling to libraries to go through microfiche to find long bankrupt publications. The cost to hire someone to do this could run in the thousands too. If I register via the yearly publication fee, the process of filling out each form takes about an hour and costs $85 x 28 years = $2295 plus the labor costs of about $500 but doesn’t provide as much protection against works getting orphaned due to the mass grouping.

    I can only imagine what it would cost a photographer who might have hundreds of thousands of images to register.

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