A Realistic Look at Orphan Works
By Jonathan Bailey • May 1st, 2008 • Category: Articles, Legal Issues, Orphan Works, Punditry  photo credit: eob |
Ever since the orphan works bill was introduced, artists have been very busy blogging about the bill, passing around petitions and organizing campaigns against it.
But while all of that is great and the renewed interest in copyright law among the creative community is a very positive thing, much of the tone this backlash has taken has been very unrealistic. Some have said the orphan works bill will cause artists to lose all rights to their work, that it would allow anyone, including plagiarists, to use your work with imunity and make it impossible to earn a living as an artist.
As horrible as these things sound, they are also patently untrue and ignore many of the realities of the bill and the copyright climate today. There are many legitimate reasons to protest this bill, but the fearmongering and exaggeration helps nothing and only damages the arguments against the bill.
If you’re against the bill, it is worth your time to look at its likely impact from a realistic standpoint, otherwise, your case against it is built upon sand.
The Sky is Falling
Many artists seem to have decided that the orphan works bill is something of an apocalypse for their profession and that, should it be enacted, that they will lose all rights to their work and all ability to profit.
However, what the orphan works bill does is create an affirmative defense in the event of a copyright infringement suit. It enables a party to use a work, under a set of guidelines, and avoid being liable for copyright infringement.
Affirmative defenses are pretty unusual in most areas of law but are actually pretty common in copyright. In short, an affirmative defense is a defense where the burden of proof is on the person claiming protection under the defense. This flips the usual burden of proof relationship on its head, requring that the defendant, not the plaintiff, make the case.
A good example of another affirmative defense is fair use. If there is a copyright dispute and the allegedly infringing party claims fair use of the work, they have the burden of proving that the use was fair, rather than the plaintiffs proving that it wasn’t. This is a very steep hill to climb legally and has caused many borderline cases to go in the favor of the plaintiff, even if a solid fair use argument can be made.
The problem is that, with an affirmative defense comes a great deal of legal uncertainty. The person using the work, just as with fair use, has no way to be certain how a judge would rule in the event that the infirngement went to court and, since they have the burden of proof, they know they have the uphill battle.
This legal uncertainty is why corporations routinely pay to license works that they only want to make a fair use out of. It is simply cheaper to pay the license fee than to risk being sued and losing. Only cases where the fair use is clear-cut do most take the risk.
Such a legal climate is likely to exist should the orphan works bill pass. Though corporations and individuals could feasibly avoid paying for a license to a work by claiming it an orphan, they would have the burden of proof in showing that it was. They would have to prove that they performed an adequate search, meaning they would have to document and verify it, they would have to prove that they provided what information they could and that they met all of the other stipulations the law provided.
Corporations are not going to be eager to take this kind of risk and neither will other copyright-savvy users. With so many works that can be licensed free and clear with either little or no money, jumping through a series of hoops in the hopes of establishing an orphan works case that could easily get shot down in court seems both tedious and risky.
Though some people will undoubtedly try to abuse the orphan works bill, it seems likely that, early on especially, use of it will not be widespread. The risk and uncertainty will be great and no one wants to be the test case.
The Current Climate
Though the ability to claim damages for copyright infringement is an important lever at times, the vast majority of copyright infringement cases, especially on the Web, don’t center around seeking damages. Instead, they focus on stopping the infringement.
However, the orphan works bill does not in any way impact the ability of an artist to stop an ongoing infringement. In fact, should the artist come forward, even in a clear cut user of an orphan work, they have the right to stop the infringement.
This has two critical elements to it:
- No Change in Powers: The simple fact is that, if you do not routinely register your works with the United States Copyright Office, there is little to no way you can practically sue for copyright infringement. In those cases, the best you can hope for is to stop the infringement and, in those cases, the orphan works bill is moot. You have the same powers as you did before.
- Leveraged Negotiations: In the event that someone uses a work as an orphan in a commercial setting and the rightsholder comes forward, they not only can claim a license for the use, one set by industry standards, but they can negotiate future use of the work. Rightsholders would have an upper hand in such negotiations and this is yet another risk that the user of the orphan work would have to weigh.
The orphan works bills do strongly favor non-commercial use, especially relating to archving and preservation, which was one of the main goals of the bill. Though commercial use is allowed, it comes with serious strings and risks.
The truth is that, with millions of works licensed in either inexpensive stock libraries, Creative Commons Licenses or in the public domain, those seeking free/cheap content to use have much safer and much easier sources available.
Your average artist, especially one that has no plans to file suit over infringement, have exceptionally little to fear in the orphan works bill. This isn’t because the orphan works bill doesn’t take away some rights, but because the rights it strips are ones that are impractical to enforce for about 99.9% of all visual artists today.
Reasons to Dislike the Bill
This is not to say that the bill is a wonderful piece of legislation that every artist should get behind, just that the doomsday scenarios are likely not gong to come to pass. There are still many reasons to dislike this bill and protest it.
Off the top of my head I could think of the following five:
- Copyright Formalities: Since 1978, artists in the U.S. have been told that they do not need to do anything to ensure that their work receives full protection under the law. While that has never been completely true, the orphan works bill could give rise to new copyright formalities, including, quite possibly, private copyright registration databases. This could result in both money and time being sapped away from artists as they take extra steps to ensure that their works are not orphaned.
- Misses the Target: The orphan works problem is generally viewed as dealing with older works that are deteriorating. This bill would lump works both days and decades old together under the same umbrella, with the same possibilities for reuse and abuse.
- Poorly Defined: The bill makes only the most vague guess at what would constitute and acceptable search or even an orphan work itself. This puts artists and users alike in fear.
- Allows Commercial Use: The goal of fixing the orphan works situation was not to merely kick a slew of work into the public domain, but to ensure that works are not lost due to their lengthy copyright term. Allowing commercial use makes little sense, even though the bill does show preference to non-commercial use. Such uses are typically less about public good and preserving culture and more about the bottom line.
- Added Confusion: Copyright law is already confusing enough without the help of extra complication. This bill will only lead to more myths, more misunderstandings and more conflicts. Focus should be placed on simplifying copyright law, not making it more nuanced than ever.
So while I find myself opposing the bill, I can not share the visions of artistic doomsday that many have claimed to foresee. The orphan works bill has many problems with it and should not be passed in it either of its present forms, but the tales of impending doom are greatly exaggerated.
Conclusions
Sadly, as well-intended as they are, the doomsayers are doing nothing to actually prevent passage of this bill. It is too easy for our leaders to dismiss their rantings as misinformed and/or unreasonable.
Though calling up your representatives and letting them know that you oppose the bill is important, it is equally important to present sound, reasoned arguments.
In 2006, this bill was defeated by a coalition of visual artists working together to target their representatives and encourage them not to vote for it. There is a strong chance that will happen again, but only if the claims can be supported.
To that end, over the next few days I am going to write a letter to my representatives and will post a copy of it on this site when done. Anyone will be free to copy it and send it to their congressmen as well.
Further Reading
Six Misconceptions About Orphaned Works
The Orphan Works Proposal (2006)
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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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As you said, many of those wanting enforcement want to stop the use, not get paid for it. That remedy may not be available that where the work has been used in a way that today would be deemed a derivative work.
“In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–
`(i) may not restrain the infringer’s continued preparation or use of that new work;”
The most serious problem is based on the rationale of the proponents of the bill. Today they claim the need for it is inability to contact the author for permission. They claim they can’t find the authors even if they try really hard. For artistic works, frequently stripped of identification, even registered works may be realistically impossible to match up with the author. Thus a commercial user may even honestly make the effort and yet fail to find. And the artist may thus lose rights (see above re derivative work).
As you said, many of those wanting enforcement want to stop the use, not get paid for it. That remedy may not be available that where the work has been used in a way that today would be deemed a derivative work.
“In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–
`(i) may not restrain the infringer’s continued preparation or use of that new work;”
The most serious problem is based on the rationale of the proponents of the bill. Today they claim the need for it is inability to contact the author for permission. They claim they can’t find the authors even if they try really hard. For artistic works, frequently stripped of identification, even registered works may be realistically impossible to match up with the author. Thus a commercial user may even honestly make the effort and yet fail to find. And the artist may thus lose rights (see above re derivative work).
Diane: The derivative works issue is one that I did not touch on but probably should have. It’s an interesting element of the bill.
Whenever I read the bill initially, I focused on that area briefly but noticed this line, in your quote above.
“work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression”
The language there is familiar to me and to most who study copyright. It is ripped almost straight from fair use and fair use rulings.
To take advantage of this, the infringer would have to take the orphan work and meld it with a “significant” amount of their own work. How much is significant? If fair us is any indication the answer is quite a great deal.
We’re not talking about simply running a Photoshop filter over the image and calling it a day, this is using a poem in a novel, a picture in a collage, etc. Fair use is a likely argument in many of these cases completely apart from the orphan works situation.
The cases where a someone is allowed to use a work in a manner that is not covered remotely by fair use but is by the orphan works law will be very rare. Furthermore, these are not the commercial disasters that wholesale non-transformative copying are.
This exemption, while worth noting, is very narrow and the language works to make it as such. Would I rather it not be there? Sure. Would I rather the bill go away again? Sure. But the sky isn’t falling here either.
Your rights are far more limited, in a practical sense, by the registration requirements than this. That doesn’t make it right, but there isn’t much need for panic either.
Diane: The derivative works issue is one that I did not touch on but probably should have. It’s an interesting element of the bill.
Whenever I read the bill initially, I focused on that area briefly but noticed this line, in your quote above.
“work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression”
The language there is familiar to me and to most who study copyright. It is ripped almost straight from fair use and fair use rulings.
To take advantage of this, the infringer would have to take the orphan work and meld it with a “significant” amount of their own work. How much is significant? If fair us is any indication the answer is quite a great deal.
We’re not talking about simply running a Photoshop filter over the image and calling it a day, this is using a poem in a novel, a picture in a collage, etc. Fair use is a likely argument in many of these cases completely apart from the orphan works situation.
The cases where a someone is allowed to use a work in a manner that is not covered remotely by fair use but is by the orphan works law will be very rare. Furthermore, these are not the commercial disasters that wholesale non-transformative copying are.
This exemption, while worth noting, is very narrow and the language works to make it as such. Would I rather it not be there? Sure. Would I rather the bill go away again? Sure. But the sky isn’t falling here either.
Your rights are far more limited, in a practical sense, by the registration requirements than this. That doesn’t make it right, but there isn’t much need for panic either.
Linked:
[...a blog that has done its research and presents a clear headed view of these controversial new bills.]
Linked:
[...a blog that has done its research and presents a clear headed view of these controversial new bills.]
I’m confused about the need for this legislation. So help me here. I keep reading in reference to this legislation, about how it’s needed for old ladies who want old family photos restored without fear of copyright litigation. Now, I’ve worked recently with a bunch of old people, and their biggest concerns were medical care and insurance and Social Security payments, not Orphans Works legislation.
Then I keep reading about how there is an army of documentary filmmakers who can’t make films without this legislation being passed, and knowing some guerilla filmmakers, they haven’t been troubled with the old copyright law. I mean, has Michael Moore been withering on the vine because of Orphan works???
So can people list how an image, whose owner isn’t known, might be used? In the non-profit realm? And what about the commercial realm, which is what I suspect the meat of this issue is really about.
I’m confused about the need for this legislation. So help me here. I keep reading in reference to this legislation, about how it’s needed for old ladies who want old family photos restored without fear of copyright litigation. Now, I’ve worked recently with a bunch of old people, and their biggest concerns were medical care and insurance and Social Security payments, not Orphans Works legislation.
Then I keep reading about how there is an army of documentary filmmakers who can’t make films without this legislation being passed, and knowing some guerilla filmmakers, they haven’t been troubled with the old copyright law. I mean, has Michael Moore been withering on the vine because of Orphan works???
So can people list how an image, whose owner isn’t known, might be used? In the non-profit realm? And what about the commercial realm, which is what I suspect the meat of this issue is really about.
Confused: I’m probably not the best person to explain this, but I will give it a shot.
In the non-profit realm, the biggest worry isn’t so much about any actual use but preservation. The problem is that there is a lot of copyrighted material stored in media that will deteriorate and be destroyed before the copyright on the work expires. Film and photos are especially vulnerable to this as many of the oldest film media have relatively short shelf lives but very long copyrights.
This creates both a problem with historical preservation, saving historic images and footage, and cultural one, because by the time these works are in the public domain, they will no longer be useful.
As for commercial use. That is something I don’t personally agree with and I really don’t see how commercial use will be widespread. I don’t see it as necessary for the legislation to solve the problem before us and I don’t see what is gained, especially since the vague terminology will only make it nearly impossible for commercial use to take place.
I’ll leave it to someone wiser than I to explain that portion of the bill.
I hope that helps!
Confused: I’m probably not the best person to explain this, but I will give it a shot.
In the non-profit realm, the biggest worry isn’t so much about any actual use but preservation. The problem is that there is a lot of copyrighted material stored in media that will deteriorate and be destroyed before the copyright on the work expires. Film and photos are especially vulnerable to this as many of the oldest film media have relatively short shelf lives but very long copyrights.
This creates both a problem with historical preservation, saving historic images and footage, and cultural one, because by the time these works are in the public domain, they will no longer be useful.
As for commercial use. That is something I don’t personally agree with and I really don’t see how commercial use will be widespread. I don’t see it as necessary for the legislation to solve the problem before us and I don’t see what is gained, especially since the vague terminology will only make it nearly impossible for commercial use to take place.
I’ll leave it to someone wiser than I to explain that portion of the bill.
I hope that helps!