Orphan works: “copyrighted works whose owners are difficult or even impossible to locate.” That’s how the Copyright Office defines the term in a January 26, 2005 Notice of inquiry on orphan works. That song from 1924 whose writer disappeared or died and whose estate is not clearly identifiable. A photograph taken in 1930. Early documentary films. Tens of thousands of long-out-of-print novels; thousands of pulp-fiction short stories, novellas, and novelettes. The list goes on, literally into the millions—and the inquiry yielded more than 700 direct comments and more than a hundred responses to those comments.
I’m quoting at length from the Notice of inquiry because it does a remarkably good job of setting the scene (and, since it’s government work, it’s in the public domain within the U.S.). Here’s the summary:
The Copyright Office seeks to examine the issues raised by “orphan works,” i.e., copyrighted works whose owners are difficult or even impossible to locate. Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. This notice requests written comments from all interested parties. Specifically, the Office is seeking comments on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.
Comments were accepted through March 25, with responses through May 9. The “background” section and portions of six “Specific Questions” are excerpted from the Notice of inquiry.
The Copyright Act of 1976 made it substantially easier for an author to obtain and maintain copyright in his or her creative works. Today, copyright subsists the moment an original work of authorship is fixed in a tangible form--it need not be registered with the Copyright Office or published with notice to obtain protection. While registration of claims to copyright with the Copyright Office is encouraged and provides important benefits to copyright holders, it is not required as a condition to copyright protection. Under the 1909 Act, renewal registration was required to maintain protection beyond an initial 28-year term. Failure to register the renewal during the last year of the first term resulted in complete loss of protection. The 1976 Act removed the renewal requirement going forward, but kept it for works copyrighted before 1978. It was not until 1992 that the renewal requirement was abolished altogether. These changes, as well as other changes in the 1976 Act and in the Berne Convention Implementation Act of 1988, were important steps toward harmonizing U.S. copyright law with international treaties. Specifically, the Berne Convention and other treaties dealing with copyright that have followed forbid the imposition of formalities as a condition to copyright, principally on the grounds that failure to comply with formalities can serve as a trap for the unwary, resulting in the inadvertent loss of copyright.
Concerns have been raised, however, as to whether current copyright law imposes inappropriate burdens on users, including subsequent creators, of works for which the copyright owner cannot be located (hereinafter referred to as “orphan” works). The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be. Such concerns were raised in connection with the adoption of the life plus 50 copyright term with the 1976 Act and the 20-year term extension enacted with the Sonny Bono Copyright Term Extension Act of 1998.
The Copyright Office has long shared these concerns about orphan works and has considered the issue to be worthy of further study. On January 5, Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee asked the Register of Copyrights to study this issue and to report to the Senate Judiciary Committee by the end of the year. Also in January, Reps. Lamar Smith and Howard Berman, the chairman and ranking member of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, sent letters to the Register supporting this effort. The Office is gratified that Congress has shown an interest in this important issue and is pleased to assist Congress in its efforts to learn more about the problem and to consider appropriate solutions.
Prior to the 1976 Act, the term of protection was limited to 28 years if the copyright was not renewed. Under this system, if the copyright owner was no longer interested in exploiting the work, or a corporate owner no longer existed, or, in the case of individual copyright owners, there were no interested heirs to claim the copyright, then the work entered the public domain. Of course, it also meant that some copyrights were unintentionally allowed to enter the public domain, for instance, where the claimant was unaware that renewal had to occur within the one year window at the end of the first term or that the copyright was up for renewal. The legislative history to the 1976 Act reflects Congress' recognition of the concern raised by some that eliminating renewal requirements would take a large number of works out of the public domain and that for a number of those older works it might be difficult or impossible to identify the copyright owner in order to obtain permissions. Congress nevertheless determined that the renewal system should be discarded, in part, because of the “inadvertent and unjust loss of copyright” it in some cases caused. More recently, in the mid-1990s, Congress heard concerns that the Copyright Term Extension Act would exacerbate problems in film preservation by maintaining copyright protection for older motion pictures for which the copyright owner is difficult to identify. Also, in our study on Digital Distance Education published in 1999, the Copyright Office identified several “problems with licensing” that educators asserted in attempting to use copyrighted materials in digital formats, including that “it can be time-consuming, difficult or even impossible to locate the copyright owner or owners.”
A situation often described is one where a creator seeks to incorporate an older work into a new work (e.g., old photos, footage or recordings) and is willing to seek permission, but is not able to identify or locate the copyright owner(s) in order to seek permission. While in such circumstances the user might be reasonably confident that the risk of an infringement claim against this use is unlikely, under the current system the copyright in the work is still valid and enforceable, and the risk cannot be completely eliminated. Moreover, even where the user only copies portions of the work in a manner that would not likely be deemed infringing under the doctrine of fair use, it is asserted by some that the fair use defense is often too unpredictable as a general matter to remove the uncertainty in the user's mind.
Some have claimed that many potential users of orphan works, namely individuals and small entities, may not have access to legal advice on these issues and cannot fully assess risk themselves. Moreover, even if they are able to determine with some certainty that there is little or no risk of losing a lawsuit, they may not be able to afford any risk of having to bear the cost of defending themselves in litigation.
Given the high costs of litigation and the inability of most creators, scholars and small publishers to bear those costs, the result is that orphan works often are not used—even where there is no one who would object to the use.
This uncertainty created by copyright in orphan works has the potential to harm an important public policy behind copyright: To promote the dissemination of works by creating incentives for their creation and dissemination to the public. First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. Subsequent creators may be dissuaded from creating new works incorporating existing works for which the owner cannot be found because they cannot afford the risk of potential liability or even of litigation. Second, the public interest may be harmed when works cannot be made available to the public due to uncertainty over its copyright ownership and status, even when there is no longer any living person or legal entity claiming ownership of the copyright or the owner no longer has any objection to such use.
Empirical analysis of data on trends in copyright registrations and renewals over the last century suggests that a large number of works may fall into the category of orphan works. Based on data of registrations of claims to copyright and their subsequent renewal under the 1909 Act, it appears that, overall, well less than half of all registered copyrighted works were renewed under the old copyright system. Because renewal was required to maintain protection of a work, this data suggests that, at least in many cases, there was insufficient interest a mere 28 years later to maintain copyright protection. The empirical data does not indicate why any particular works were not renewed, and no doubt, a certain portion of those works were not renewed due to inadvertence, mistake or ignorance on the part of the owner. With respect to many of these works, however, particularly those owned by legal entities or other sophisticated copyright owners, it can be assumed that the work no longer had sufficient economic value to the copyright claimant to merit renewal. Libraries and scholars have argued that those works that have so little economic value that they fail to merit the small expense and effort of renewal may nevertheless have scholarly or educational value and should not be needlessly barred from such use.
1. Nature of the Problems Faced by Subsequent Creators and Users
What are the difficulties faced by creators or other users in obtaining rights or clearances in pre-existing works? What types of creators or users are encountering these difficulties and for what types of proposed uses? How often is identifying and locating the copyright owner a problem? What steps are usually taken to locate copyright owners?
2. Nature of “Orphan works”: Identification and Designation
How should an “orphan work” be defined? Should “orphan works” be identified on a case-by-case basis, looking at the circumstances surrounding each work that someone wishes to use and the attempts made to locate the copyright owner? Should a more formal system be established?
…The establishment of a filing system whereby the potential user is required to file an intent to use an unlocatable work has also been suggested. Would the Copyright Office or another organization administer and publish such filings?
3. Nature of “Orphan Works”: Age
Should a certain amount of time have elapsed since first publication or creation in order for a work to be eligible for “orphaned'' status? If so, how much time?
4. Nature of “Orphan Works”: Publication Status
Should the status of “orphan works” only apply to published works, or are there reasons for applying it to unpublished works as well?
5. Effect of a Work Being Designated “Orphaned”
However a work is identified and designated as “orphaned,” what would be the effects of such designation? Under systems for a mandatory, formal registry of maintained works, like the 1909 Act, the right to assert one's exclusive rights vis à vis others could similarly be lost, in whole or in part, if the work was not contained on the registry. Should this loss of rights apply only to the particular work at the time of use, or only to the particular use or user, or would it affect a permanent loss of rights as against all uses and users?
6. International Implications
How would the proposed solutions comport with existing international obligations regarding copyright?
More than 700 comments were received, some quite lengthy. You can read them at http://www.copyright.gov/orphan/comments/index.html, or download a 24MB Zip file including all the distinct comments. I say “distinct” because 18 comments (if I count right) are identical to an astonishing 126-page illustrators’ screed, http://www.copyright.gov/orphan/comments/ OW0660-Holland-Turner.pdf, which in its first four pages denounces Creative Commons, asserts that the whole “orphaned works” concept is part of a movement to “subvert existing copyright protection for other work,” and claims that commercial stockhouses would declare huge quantities of materials “orphan” simply to save money. The rest of the massive document is a directory. Apparently listing every member of an organization adds importance to an argument—and having 18 different members send in the same content makes it 18 times as weighty.
The set of responses, far fewer in number, is at http://www.copyright.gov/orphan/comments/reply/.
Most comments note real-world difficulties caused by orphan works—or in some cases what’s happened when an organization has decided to take a chance. For example (drawing from a March 10 summary at FreeCulture.org):
Ø “The DigiBarn Computer Museum is telling the 30-year story of personal computing in an online project with more than 50,000 objects, “many of which are ‘orphaned works’…from now defunct firms. We have a statement on every page on our site offering to remove works if the original copyright holder objects. In 3 years we have never once been challenged about any one of the works on our web site… However, as professional and amateur historians we could very much utilize a formal definition of what constitutes an orphaned work.”
Ø “I am a fan of old radio programs of the 1940s and earlier. These programs offer a priceless glimpse into American culture at perhas the greatest time in our history. But for the majority of this material the rights holders, if any, simply cannot be tracked down…” This person argues for shorter copyright terms and an abolition of automatic copyright and concludes: “Material that lies forgotten for decades and suddenly becomes valuable 70 years later doesn’t need to generate unexpected profits for heirs or holding companies. That doesn’t encourage innovation in any way, which is the real purpose of copyright.”
Ø From a professional artist whose “work depends on good copyright protection”: “As an artist, I also know how much powerful synergy arises from the re-interpretation and re-imagining of old works—so making ‘orphaned’ work available to the public domain more easily is a huge benefit to society which imposes no burden on the absentee owners.”
Ø Several people commented on trying to get old photos—for example, wedding photos they paid to have taken—restored and copied by photo shops, to be turned down because the original photographer presumably still held the copyright. (You think you own your wedding photos? Check the contract you signed with the photographer: There’s a good chance you only own the prints you purchased, without the right to copy those without paying that photographer an extra fee.)
Ø The publisher of “a magazine devoted to bringing great illustration art back into the public eye” has run into so many “dead-ends in my copyright searches” that source material is now limited to pre-1923 publications. “Much of our artistic heritage languishes in an uncharted limbo of doubt, and it serves no one and no purpose.”
Ø There’s also the other side. “What struck me, because I have worked for many publishers, is that to place a so-called orphaned work in the public domain would be to say ‘Go get it,’ to the publishers, if the work is of any broad interest.” This person, G. Miki Hayden, posits a writer who’s “elderly and completely out of circulation,” and is disturbed by the idea that a work could be considered orphaned, published as “a minor work” by a publishing company, and seen in print by the family. “Are the family members then to be told that they and the elderly father or mother have no rights in regard to the work?” (Until 1976, the answer was quite clear: Yes, since copyright would not have been renewed because the author didn’t care.)
Ø John D. Berry, Native American Studies Librarian at UC Berkeley’s Ethnic Studies Library, discussed that library’s difficulties in locating copyright holders for newsletters and newspaers generated by Native Americans, Chicanos, and Asian Americans. The library would like to microfilm some of the rare publications, and may be the only library in the U.S. holding the items, but “due to the difficulties locating any participants/owners of aforementioned presses we cannot microfilm or can only do so with great difficulty”—and they can’t share the microfilm without locating copyright holders.
Ø One commenter wants to put early (pre-WWII) “World of Knowledge”-style encyclopedias online—but the pictures have, at most, nominal author credits, and the articles may not have authors clearly identified. “The cost and time taken to do thorough research into the identities of the ‘creative artists’ would prohibit re-publication and therefore would stop the project…until mid-century at least.”
Mary Minow discussed the nature of the problem posed by orphan works for libraries, museums and archives (my paraphrase in square brackets):
In many cases, the expertise, time and money is simply not available to even determine whether or not a work is still in copryight…let alone track down unknown copyright owners via probate records and bankruptcy proceedings… I am not aware of any libraries that make use of [the 20-year but very limited] exemption. I believe this is because the exemption is so uncertain. [It] applies only where the copy is made for special listed purposes by the library (not subsequent users), it covers only “published” works not “subject to normal commercial exploitation” and not obtainable, apparently not even as a used copy, at a “reasonable price”; and it insists that the library assure itself through “reasonable investigation” that these conditions have been met. Most importantly, the terms “reasonable investigation” and “subject to normal commercial exploitation” are so open-ended that the risk-averse library does not use the twenty-year exemption. [She goes on to applaud the criteria set forth to define orphan published works, in particular the lack of the “normal commercial exploitation” loophole, and the idea of a users’ registry for those proposing to use an apparently-orphan work:] Nonprofit users, including most libraries, would only need to file their intent or use, at no cost. Commercial users would follow the same procedure but would additionally need to pay a set fee in a segregated trust account...
Minow also suggests no-cost registration by copyright owners as a requirement to maintain a range of remedies for infringement; this would make it possible for would-be users to contact the owners. But the owners’ registry must be mandatory to be useful.
This Duke Law School center provided two documents as comments (both published under Creative Commons licenses): The 13-page Orphan works analysis and proposal and 8-page Access to orphan films.
The first comment states the core purpose of copyright as to “enrich the general public through access to creative works,” based on a recent court decision. It goes on to suggest that the Notice of inquiry understates the dimensions of the problem:
First, copyright law no longer has formalities… Indeed, many works whose authors do not want copyright protection are now swept, willy-nilly, into the copyright scheme…
Second, the nature of technology means that far more “fixed” works are created than ever before, many thorough non-standard distribution channels, whose record keeping is sporadic at best. Thus the problem will only increase.
Third, repeated retroactive copyright term extensions mean that vast numbers of works whose authors had no reason to order their affairs in the belief that rights will subsist are still potentially under copyright…
Fourth, changes in technology mean that publishing, reproducing, editing and commenting are now potentially within the hands of millions, who could offer restored, edited and revised orphan works to the world on the World Wide Web. Yet at this precise moment, which could be the golden age of copyright, it is probably true that the majority of 20th century culture consists of orphan works. That is certainly true in the case of film… The result is particularly perverse. Having done its job and encouraged initial creation and distribution, copyright now stands as an unnecessary barrier to future dissemination.
Fifth, many modern media simply do not last as long as the copyright term. Without a better scheme for handling orphan works it is likely that we will lose them…forever.
The Center notes that the current system “does little...to benefit the authors” of the occasional “apparently orphan work” actually under copyright management—because would-be users avoid such work! “The undiscovered author of an apparently orphan work would actually be better off in many cases with a system that required a reasonable search and notice of intended use, and then gave qualified immunity to future use.” After expanding on these points, the Center notes proposed legislation that would require a $1 tax (and registration) fifty years after publication, and every ten years thereafter—a modest proposal, but one that would help in the long run. But, as noted, “It does not address the problem of presently orphaned works.”
The last few pages of the comment propose a solution based on seven key principles: clear guidelines, low levels of required search, broad coverage, efficient administration, “notice” for proposed uses that copyright holders can easily search, safe harbor for those who have followed the procedures, and protection of value-added restorers and reusers (so that, if you’ve added value to an apparently orphan work and the holder turns up, you can continue your use on payment of a specified royalty: otherwise, copyright holders gain unjustly through your added value).
The second comment, Access to orphan films, asserts that such films “make up the overwhelming majority of our cinematic heritage”—“a vast treasure trove of newsreels, documentaries, anthropological films, portraits of minority life in the U.S., instructional films, and even some Hollywood studio productions.” Such orphans present a special problem because the works “are literally disintegrating”—they’re on volatile stock that self-destructs. According to the Library of Congress, half of the movies made before 1950—probably hundreds of thousands in all, since one estimate is that 30,000 films had been made by 1917—“are already irretrievably lost.” In 1994, LC estimated that 80% of films from the 1920s and 90% from the 1910s had already decayed beyond any hope of restoration. Video doesn’t help: “In the words of one expert, ‘videotape has much more serious longevity issues [than] Film.’”
Many of the works most in need of digitization for preservation are orphan films, “films of long-term cultural and historical value that are not being protected by commercial interests.” In one of the perversities of the Sonny Bono act, the Senate argued that extending copyright would further preservation by “providing copyright owners at least 20 years to recoup their investment”—but marketable Hollywood features “constitute a tiny proportion of the surviving film population.” For works without identifiable owners, the extension makes matters worse by denying others the ability to restore and display the work.
Most unrestored film isn’t in studio vaults; it’s mostly in public archives such as LC, the UCLA Film and Television Archive, and the Museum of Modern Art. But those guardians typically don’t hold copyright—and a single film can have multiple copyright holders. (The comment then offers a shorter version of the proposed solution in the first Center comment.)
This 14-page comment combines anecdotes and an overall commentary. All but one of the anecdotes express “the difficulty (and in economic terms, impracticality) of tracking down authors of older works in order to reprint them.” In the science fiction world, authors and editors are the same people, so the authorial concern with being paid for reprints (aided by the fact that real science fiction is not generally a high-paying gig!) is balanced by the desire to anthologize the most interesting little-known stories.
Here’s SFWA’s summary of the problem—which says a lot about the group’s perspective:
Since works are given copyright protection the moment they are written, there is no ready way to find authors to seek their permission to republish materials, and the penalties for infringement are high, there is a lot of material that cannot be republished because the authors are essentially unlocatable…the cost to locate them, if they can even be located, is often too high to justify the use of the work. Factoring in the 95 years / Life+70 years duration of copyright, a large amount of work is likely to be unrepublishable for over a hundred years and possibly lost altogether.
There have been a number of examples submitted from editors how this has prevented them from keeping important older work in print. Author Spider Robinson noted that much of science fiction’s pulp magazine heritage could be lost because by the time copyrights expire, the physical magazine issues may no longer exist. (Some have been archived on microfilm, but not all, and the microfilm copies are of dubious quality.) Examples of losing track of authors after less than a decade were given, demonstrating the likelihood that obscure older works are even more difficult to republish. This includes not just short stories, novels, poetry, etc., but web pages, public newsgroup postings, etc.
SFWA’s Orphan Copyright Committee arrived at a “compromise consensus” recommendation. It proposes that the copyright office maintain an official author information directory (making finding authors easier), an explicit methodology be established for proving a work is an orphan and allowing limited use (a reasonable search, public notice for six months, followed by statutory compensation into an escrow fund), publishers be charged a small fee (and some percentage of the escrow should be used) to fund the first two recommendations, and a new remedy of three times baseline statutory compensation be established for cases where work is republished without following the “orphan works” procedure, so publishers don’t try to slide by. Additionally, “group registration” should be simplified and the procedures for registering freelance contributions to periodicals should be clarified and simplified.
It’s refreshing to find an organization that represents the interests of copyright holders seeking balance. SFWA isn’t a group of fat cats living high off multimillion-dollar advances; it is a group of people that seems to think things through.
This group submitted a nine-page comment. The ten bullet points offered as “suggestions when crafting a [proposed] ‘reasonable effort’ defense to copyright infringement” cover a wide range and include explanations of why proposed remedies would not violate international copyright law.
Public Knowledge believes an orphan work can be young or old and can be any type of creative work; failed “reasonable effort” searches should establish reasonable, predictable limits on remedies available to copyright owners; and the statute should avoid exact parameters of a “reasonable effort” because that varies from medium to medium and work to work. PK suggests publication of brochures outlining typical parameters, encouraging (but not requiring) sworn statements describing such searches (and having sworn statements serve as prima facie evidence in lawsuits), allowing one completed search to serve for other users of the same work, and limiting remedies following an unsuccessful search to $200 per use.
Wired News ran a Katie Dean story on April 12, 2005, “Copyright reform to free orphans?” She quotes filmmaker Robert Goodman, working on a documentary of early American picture postcards and frustrated because there’s no good way to find the copyright holders. It’s a good piece (including some of the anecdotes already noted), ending on a downbeat note. Goodman needs to clear 800 to 1,500 postcards. “I will have to hire a couple of people to do this research. I don’t know how long it will take… We will do everything in our power to cross all our t’s and dot all the I’s, and we’re still going to get nailed. Somebody’s going to come out of the woodwork… At what point do you eliminate my ability to comment on popular culture because of copyright issues?”
The FAQ in RLG DigiNews 9:2 (April 15, 2005) is “Adopting ‘orphan works’” (www.rlg.org/en/page.php? Page_ID=20571). Peter Hirtle offers crisp, readable definitions of the problem and why it’s larger now. Hirtle summarizes the comments, noting that many of them document problems in using orphan works—while some argue against regulations that might reduce absolute copyright control. None of the comments Hirtle reviewed endorsed the Canadian approach, a cumbersome setup that requires extensive research followed by review by a government board. In commenting on his FAQ, Mary Minow refines his notes to come up with this challenge:
Can we set forth a bright line determination of “reasonable effort”? If we don’t have some concrete measure of “reasonable effort,” have we really set forth a safe harbor for risk averse folks?
At $150,000 an “incident,” Minow’s question is a good one.
An April 21 story by Dawn Withers (originally in the Chicago Tribune, downloaded from tallahassee.com) includes one of the “damaged photograph” anecdotes and some examples of problems facing libraries and museums—but also includes two fairly astonishing quotes from the “other side”:
“It’s being framed as ‘rich corporations keeping culture from the public,’” said Brad Holland…artist and co-founder of Illustrator’s Partnership of America. “But the public doesn’t create culture. Individuals do. This is an effort by a bunch of dedicated and well-funded advocates of free culture.”
“Finding a copyright or not finding one is in the eye of the beholder,” said Theodore Feder, president of the Artists Rights Society, which represents the estates of major 20th century artists. “This approach is disastrous from the perspective of copyright protection.”
Holland’s statement is the first time I’d seen anyone suggest that orphan works are caused by “rich corporations”—that’s implausible, since rich corporations are going concerns, which makes it easy to contact them for licensing. The problems are failed corporations—and the individually owned copyrights where individuals have gone missing. The last sentence is consistent with the “slippery slope” in this organization’s comment—the free culture bunch is just trying to undermine copyright. The second statement seems to presume that no measure of “reasonable effort” is possible and attacks this as undermining copyright. I find it interesting that the Artists Rights Society represents estates, not artists—and if it actually represents those estates and has a list of them, then “reasonable effort” would find it.
One document that doesn’t identify its creator (but appears to be from the University of California), “Observations on the initial results of the U.S. Copyright Office inquiry on orphan works,” includes a systematic 5% sample of responses—taking every 20th one in the order in which they were filed. Thirty of the 34 responses checked said orphan works were a problem warranting a statutory solution; four “believed that the orphan works problem did not warrant any diminution of the existing exclusive rights of authors/copyright holders.” Twenty-seven comments are from major universities, libraries, and related organizations; all of those comments “acknowledge and present evidence that orphan works are a problem.”
Joe Gratz commented on ten of the 140+ reply comments in a May 12 posting. RIAA appears to favor a solution to the orphan works problem—but then, federal copyright only began to protect sound recordings in 1972, so RIAA isn’t heavily affected. He finds the Illustrators’ Partnership reply, like their comment, to be “the most copyright-maximalist end of the spectrum of submissions”—noting that they spend most of their reply attacking Creative Commons and proposals for solutions. “There is a startlingly broad consensus for some sort of action toward a solution to the orphan works problem…”
Finally (for now), Scott Carlson writes, “Whose work is it, anyway?” in the July 29, 2005 Chronicle of Higher Education—one of those portions that’s free sometimes. Carlson begins with one difficult anecdote: Joseph Siry, a professor of art history, wanting to include a sketch of a building in a scholarly article—and Siry, “who is usually meticulous about clearing copyrights,” just couldn’t track down rights holders. He used it in his article anyway—but he’s uncomfortable about it. “Many scholars, archivists, and librarians have stories like Mr. Siry’s.” When Carnegie Mellon’s library studied a sample of 270 items in its holdings, 22% appeared to be orphan works. When Cornell University librarians tried to clear copyright on 343 monographs for its digital archive of literature on agriculture, it spent $50,000 “and months of staff time”—and still hasn’t been able to identify owners of 58% of the monographs. In 47 cases Cornell was denied permission “primarily because the people we contacted were unsure whether they could authorize the reproduction or not,” according to Peter B. Hirtle.
Then Carlson quotes people from the Illustrators’ Partnership—which argues that registration is an unfair burden (presumably because the illustrations have so little reuse value), but that orphan works procedures “would undermine our ability to control our rights and make a living from the work we produce.” IP’s Holland specifically attacks Lawrence Lessig: “Lessig wants to argue that I need to register everything that I do, or it’s an indication that I don’t see any commercial value.” Or how about this: “Peter Jaszi and Larry Lessig and these characters are all arguing that the purpose of copyright law is to bring work into the public domain as rapidly as possible.”
The line from illustrators and photographers is truly difficult to respond to. They’re saying they can’t be expected to register their works so that someone can find them in order to license them—that would be an unreasonable burden for hundreds or thousands of items, even if registration was free and online. Which is another way of saying that the works don’t have enough commercial value to be worth registering.
But the photographers and illustrators want absolute power to bring the full majesty of copyright law, $150,000 per infringement (plus actual damages), down on anyone who does reuse their already-published work after trying and failing to locate them.
It’s a classic Gotcha. The groups won’t consider a scheme that would mean there was money in escrow if they did find their works had been reused through an orphan works system; after all, that would only be a few hundred bucks, not the Jackpot of copyright infringement.
Most works build on other works. Contemporary copyright law precludes purely derivative works. Orphan works present a range of problems that bedevil libraries, museums, publishers, authors, and others—and enrich almost nobody. It should be possible to craft a solution that retains copyright protections in a manner consistent with the U.S. Constitution while eliminating some of the uncertainty that now exists.
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