My first post about the Berkeley orphan works conference focused on what we had done to create the massive orphan works problem we now face, and what mistakes we should avoid in the future as we try to solve it. Now I get to be a little more positive and discuss some of the suggestions I heard (all of the PowerPoints are now available) for solving the problem that seem quite workable. The overarching theme, I think, is keep it simple; rely on small legislative changes or solutions that can be implemented at the trial court level, rather than on big ideas.
Perhaps the foundational presentation focusing on a simple approach was from Jennifer Urban, one of the Directors of the Samuelson Law, Technology and Policy Clinic, who simply laid out the argument that use of orphan works most often will be fair use. Her principal innovation in the fair use analysis was that it should begin, in this case at least, with looking at the second fair use factor, the nature of the original work being used. The second fair use factor is not often asked to do much work, in my opinion, and attentive readers of this blog will know that I have suggested before that more emphasis be put there in regard to academic works. Professor Urban’s argument about orphan works focused on the second factor for a similar reason — by starting there we could more clearly focus on the incentives for creation of a particular type of work and understand that there is no incentive to be gained for the creator or publisher of a true orphan work by charging a toll for use. Indeed, Urban moved from the second to the fourth factor, an easy transition in this argument, and pointed out that an orphan work represents a complete “market failure” in which the economic impact factor clearly favors fair use. So the simplest solution to the orphan works (or Berne) problem is just to recognize that the tools to facilitate beneficial uses of orphans already exist in U.S. law.
A proposal that meshed nicely with this approach was made by Professor Ariel Katz, from the University of Toronto, who suggested that courts could merely “tweak” the remedies for infringement to support uses of orphan works by taking into account, at the remedy stage, whether or not a reasonable search for a rights holder was done by the user prior to use. If a court found that such a search was done, and no rights holder found, then damages could be waived or reduced to a reasonable fee for the use. This suggestion can be seen as complementary to Professor Urban’s, since a fair use argument, if successful, could avoid a finding of infringement and, even if the judge did not accept fair use, a second step, adjusting the remedies, could still avoid the inefficiency of penalizing a beneficial use of an orphan work. It would also provide an incentive for rights holders to take steps to be findable, which would protect their potential remedies and increase the likelihood of an efficient transaction over the proposed use. Taken together, theses two proposals require no legislation at all and could significantly improve the efficiency of the system by which culture replicates itself and develops.
Perhaps the most enlightening part of Professor Katz’s talk, however, was his analysis of the thinking that stands in the way of an elegant solution to the problem of orphan works. He spoke about how the “permission first” mentality has become a kind of “dogma” which blinds many to the possibility of simple and sensible solutions. By focusing on the idea that all uses must be permissive, even if that permission comes from a licensing organization and does not benefit the work’s creator, we treat reuse of culture as a kind of “sin” and set up a licensing model that parallels the medieval system of indulgences. “The coin in the coffer rings and an orphan work from idle purgatory springs!” This approach is inappropriate and deeply inefficient when we speak of cultural creativity, which is inevitably cumulative and can be seriously undermined by a “permission first” attitude.
A different analogy was drawn by Professor Lydia Loren of Lewis & Clark School of Law, who preferred the term “hostage work” to the language of orphans. She focused on the parallel with real property law and the doctrines on abandonment and waste. As she said, there is a public interest that the law has long recognized in preventing what is called “permissive waste,” whereby a property owner allows the property to fall into disuse and become unproductive. Such property, whether real or intellectual, is then held hostage to an exclusive right of ownership that is not being responsibly exercised. In real property, we have doctrines like adverse possession and abandonment that will simply take that ownership right away when the waste is harmful to society.
Regarding “hostage” works of intellectual property, Professor Loren suggested that the incentive for creation had clearly already worked, since the work had come into being, but that the incentive to disseminate that work — to share it for the cultural benefit of all — had failed. In light of that failure, “waste” should be prevented in a way that benefits the public. Her fascinating suggestion was that the user of such a work should be protected from liability for infringement (if a rights holder arises), but only if the user has made a copy of the work available in openly accessible form. Thus the public interest is served, by the accessible copy, yet the user can still make whatever use she wants, even a commercial one. A rights holder that arises later might be able to stop that use, but the public has still benefited and the waste caused by a period of abandonment has been prevented.
These proposals gave me some reason to believe that we could make progress on the orphan works problem without needing large legislative changes, which almost never make copyright law better, and without actually shirking our commitments under the Berne Convention and TRIPS Agreement. However unfortunate some of the effects of implementing those treaties in the U.S. has been, solutions to the worst damage done are still at hand.