Reducing the number of orphan works in the world

The two orphan works bills currently under consideration in Congress share many common features, the most obvious one being that both address the problem of orphan works by drastically reducing the penalties for using such a work without permission. They also both would create a very burdensome process for determining that a work is sufficiently likely to be an orphan to justify the reduced penalties in the presumably rare case that the user was mistaken.

These bills have gotten mixed reactions from the library and copyright communities in higher education. The American Library Association has indicated some level of support for the Senate version of the bill, while Public Knowledge and the Electronic Frontier Foundation have both strongly endorsed the Congressional efforts. Several individual voices for which the academic library community has great respect, however, have indicated opposition. Kenneth Crews suggests his reservations, while also criticizing the campaign against the bills, in this blog post, while Lawrence Lessig’s opposition was expressed forcefully in this New York Times Op-Ed.

My opinion is that the bills might do some good in a few situations, but they will not accomplish much. Part of the problem is that they are “remedy-based” solutions; they simply remove some of the risk attendant on using orphan works or, to look at it from the other perspective, the protection copyright owners have against infringement (Lessig puts the situation this way, but I am afraid that this formulation doesn’t recognize that for most of the works we are talking about, there really is no rights owner whose protection would be decreased). But in any case, these bills would do nothing to curb the ever growing number of orphan works. So I want to examine some of the alternatives to a remedy-based solution to orphan works and consider changes in the law that might actually reduce the number of orphaned works that now burden our copyright system.

Lessig suggests one such strategy in his NYT piece when he argues that a more efficient and fair solution to orphan works would be to reestablish a renewal process and give new materials only a short initial term. Thus authors and artists who did not plan to commercialize their works after that short initial period (during which the vast majority of works exhaust their value) would allow those works to pass into the public domain. Those who did plan to continue to protect and exploit their works would pursue a very simple, inexpensive renewal. This would clear reduce the orphan works problem going forward, although it would not help with the many orphans already in our collections. The biggest objection to this plan, however, is that it reduces “formalities” into the enjoyment of copyright in contradiction to obligations the US agreed to when it adhered to the Berne Convention and the TRIPs agreement. Those international treatises do not permit formalities, which is a big reason we went to automatic protection in the first place. It is true that the US has been quite inconsistent in complying with the various obligations we took on with Berne and TRIPs, so this objection is probably not insurmountable. But it would be a major argument to be used against such a change, and it would probably prevent Congress from enacting a renewal requirement.

There are a number of other ways to imagine changes in the law that would reduce the problem of orphan works, either by focusing on the commercialization of particular works, as Lessig’s suggestion does, or by taking advantage of efficiencies gained by returning ownership of unexploited works to the original authors or creators. An upcoming post or two will examine some of those other possibilities.

One thought on “Reducing the number of orphan works in the world”

  1. There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught.

    The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass.

    Lloyd Shugart
    Unintended victim


    full copy of Tammy’s letter here

    I read your letter on a Techdirt #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.

    I am the POSTER CHILD for why this is bad for the copyright creators.

    I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD.

    US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPHAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.

    My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”

    So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.

    As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.

    How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.

    Propet USA v. Lloyd Shugart WD WA. Federal Court

    Lloyd Shugart

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