A Realistic Look at Orphan Works

Jonathan BaileyMay 1, 2008

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.