Punditry: The Orphan Works Proposal

I’ve written a great deal these past few days regarding the orphan works proposal. I’ve talked about what the proposal is, what it means and, perhaps most importantly, what you can do to avoid having your works declared orphans under the law.

However, like any change to copyright law, the orphan works bill has drawn a great deal of controversy and become the center of an often heated debate. Though it hasn’t created the uproar of other recent changes to copyright law, including the DMCA, it has been met with a great deal of hostility, especially from visual artists.

The result is that, even as some have taken to calling it a "disaster" for copyright holders, others have lavishing high praise onto the proposal.

The truth is, however, as it is with most cases where both sides try to paint something with broad strokes, lies some where in the middle.

Cause for Concern

As a copyright holder that is constantly producing new works, I find this next sentence frightening: In order to ensure full copyright protection of all of my work, I have to, for the rest of my life, and beyond it, have to make sure that my work is labeled and that I, or someone representing me, is easily reached.

The law was designed with the intent of not placing any new requirements on copyright holders. This was to comply with both existing copyright treaties, most notably the Berne Convention, and to protect "unwary" copyright holders from losing their rights inadvertently.

But while the law did a great job in not creating additional registration or technical requirements (such as regularly checking a database to see if someone wants to use your work as an orphan), it created a whole new kind of legal burden, a lifestyle and artistic one.

It first and foremost proposed to change the way art is distributed, especially for stock photographers that frequently distribute work without attribution, and second, proposed to change the artists live, forcing them to ensure that the information they provided decades ago can still be used to contact them today. Under this system, anonymous and pseudonymous rights become limited and maintaining one’s copyright, previously an automatic act, requires a great deal of planning and consideration.

This, theoretically, was exactly the kind of burden that the bill was trying to avoid. It also means that countless works that still very much have their creator’s vested interest could windup being dubbed orphans.

However, the burden isn’t limited to one side. Surprisingly, the law manages to place an almost equally high burden on the user side of the law creating both a very strange sense of balance but also a very limited application of the law.

Surprise! I’m Your Orphan’s Daddy

When discussing the law, nearly every artist has a fear that people are going to conduct half-hearted searches for a copyright owner, never hoping to find them, and then use the work for whatever greedy purposes they desire when their self-fulfilling prophesy actualizes.

While I have no doubt that a few people will try exactly that, the law really doesn’t favor them.

Imagine, for a second, that I am an unethical music publisher. Needing some new cover art for a CD I’m about to release, I decide that hiring an artist is too expensive and that it’s much cheaper to find an orphan work on the Web. I search the Web, find an image I like, conduct an ineffective search for the copyright holder and, when I fail to find them, start printing.

However, the copyright holder, seeing his own creation on a store shelf, takes me to task and sues me for copyright infringement. I, in turn, claim that it was an orphan work and struggle to prove that I conducted a "reasonably diligent search" for the copyright holder (Remember: An orphan works defense is an affirmative one meaning that the burden of proof is on the person trying to claim it).

From there, one of two things happens. First, I lose the affirmative defense argument and face a regular copyright infringement suit, complete with statutory damages. Second, through some great legal maneuvering, the orphan works defense works and I pay the copyright holder a fair licensing fee, which I would have had to pay if I had licensed the work normally, and then skirt the charges altogether

However, even in the event of success, I am faced with a daunting decision. First, I can stop using the copyrighted work, creating a marketing nightmare that would be almost impossible to overcome, or I can enter into an agreement with the copyright holder to use the work legitimately. Such an agreement, however, would be tilted to the advantage of the copyright holder. Not only would he already know what a regular license fee is, but he would have the leverage of the status quo to get significantly more.

In the end, it would be cheaper and safer to either license the work from the beginning or seek out a non-orphaned but open-licensed work.

After all, with so many freely available, open-licensed works out there that can be used at no cost and carry no risk, it makes little sense to take a chance on an orphan work.

So Who Does Win?

Copyright holders can lose protection for their works, commercial users face too much risk to make orphan works use practical and seemingly none of the objectives are met. This begs the simple question, who does win in this legislation?

The answer may be a surprisingly benign group, librarians and archivists. Since non-profit use is granted a much higher level of protection under the statute, people seeking to make orphan works available to the public for the good of mankind become winners, at least more so than other groups involved.

When one uses an orphan work for a non-profit use, no licensing fees may be claimed and no other legal damages may be collected. All that a copyright holder can do is force the person or group to stop. Since non-profits, generally, have only a small stake in an individual work, that is hardly a deterrent.

However, this hasn’t stopped many librarians from decrying the legislation. In a recent podcast, Carnegie Mellon’s Denise Troll talked about the cost of performing a reasonable search and lamented that the legislation turned out as it did.

But while things definitely could have gone better for non-profits, this legislation certainly isn’t a step backwards. Yes, they still have to perform the reasonable search, as they would have under the old law, but now, if they simply can not find the copyright holder, they are free to use the work. This will free up countless new works for them and lower the cost per work of clearing rights. It may not be a complete solution, but it is clearly a step forward.

In the end, it’s these non-profits and, through proxy, the public at large that win the most in this legislation. It will free up countless works to be digitized, preserved and shared with the world. Works that might have been lost forever might see the light of day again.

General Thoughts

When one looks at this legislation from the perspectives I’ve mentioned above, it might see like a dismal failure. Copyright holders risk losing rights, commercial entities are saddled with too much risk and non-profits with too much financial burden. However, the situation isn’t that simple.

The orphan works law was designed to fix a problem, the problem of countless works being lost to a copyright limbo, their owners long gone but their copyright nowhere near expired. This has resulted in all kinds of material disappearing off the face of the planet, lost to a combination of wear and inability to legally reproduce.

This legislation does address this problem and, though it does create some problems for copyright holders, many of them can be alleviated through modern technology such as Numly Numbers and Meta tags. Though the situation is understandably frightening to copyright holders, imagine for a second the alternatives including mandatory registration and automatic expiration of works after a short period of time.

The proposed system discourages commercial exploitation of orphan works, though inadvertently, encourages thorough, well-documented searches for copyright holders and opens access to true orphan works for libraries, archivists and researchers. While no one seems to think the law is perfect, everyone agrees that it could have been a whole lot worse and, considering some of the more recent copyright legislation, that’s a miracle unto itself.

In the end, while I would have preferred some greater clarification on certain issues, such as plagiarism, and would have favored some greater protections, especially for recently-created works, the law seems to be, by in large, both well-intended and well worded.

Yes, everyone could have gotten more, but the nature of compromise is that everyone gives a little bit to solve a much larger problem. That’s what the law did. I’m not sure how much more we could have hoped for.

Some Final Notes

Some have claimed that the fact a copyright holder would only be able to get back a licensing fee would make the cost of collection prohibitively high. They forget that any lawsuit stemming from an orphan works case would be a vanilla copyright infringement suit. The orphan works clause would provide an affirmative defense that they would have to prove to prevent you from collecting traditional damages.

This means that little has changed under the law in this regard. Many cases, if not most, will be prohibitively expensive to sue over regardless of orphan works status. However, if a work is used under the orphan works clause, you could, theoretically, send a letter to identify yourself as the copyright holder and then both stop the use and claim your licensing fee under the law, without the aid of an attorney.

Users wishing to take advantage of orphan works are going to have to document their search efforts since the orphan works clause is an affirmative defense. No evidence of a search, the copyright holder would automatically have a tremendous upper hand in court.

Finally, as much as people are scared that businesses of all varieties are going to abuse the orphan works clause to infringe on copyright, I have to wonder if the opposite might happen meaning that orphan works trolls, similar to patent trolls, will pop up at unsuspecting businesses that try to use orphan works. These trolls could either intentionally stay hidden and pop up when someone uses their works or, worse still, claim to hold the copyright of others work.

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