Lessig on orphan works

Lawrence Lessig has posted his thoughts on the Copyright Office’s orphan works report. He is largely critical of the report’s conclusions and continues to support the proposed Public Domain Enhancement Act (PDEA), which was based on his ideas. In my recent paper with Bridget Dooling, we show why the PDEA solution is unworkable. But I think it’s worth addressing some of the points Lessig makes in this new response.

First, he commends the Copyright Office for ‘plainly rejecting the extreme view’ that the Berne Convention prohibits signatories from conditioning full copyright protection on the copyright owner taking affirmative steps to maintain her copyright. The Copyright Office did no such thing. It clearly stated just the opposite, that affirmative steps necessary to enjoy and exercise copyright (a.k.a. formalities) are prohibited by Berne. (Orphan Works report at 42, 61, & 68.) There is a big difference between requiring affirmative steps and incentivizing them by making available different remedies to those who take the steps. Despite his statement, Lessig seems to understand that Berne prohibits all formalities because his ultimate PDEA proposal would apply only to domestic authors, not to foreign works, and thus complies with Berne. As we pointed out in our paper, this is inefficient:

Not only is it discriminatory to U.S. authors–granting foreign authors superior rights–but it also injects an element of confusion into the copyright system. If a potential user discovers an apparently orphan work, there is no clear method by which that user can determine if the work is by a foreign or U.S. author. If the user checks the register created by the PDEA and finds no registration for the work, that could mean either that the work is in the public domain or that the work is by a foreign author who need not register. If the user nevertheless uses the work, she assumes the risk that it may be the work of a foreign author who will then come forward and sue for infringement. Thus the uncertainty that is at the heart of the orphan work problem is not removed.

Lessig replies to those who object to making orphan works legislation apply only to domestic authors by prevailing on them to look at the bigger picture. “Once the value of such a system was obvious, other nations could impose similar requirements on their own domestic works,” he writes. “Eventually, an international registry could be built out of local registrations.” The PDEA, he says, “would be a first step to this international regime.” Unfortunately, we have no assurances that the other 159 signatories to Berne will find this solution “obvious.” Perhaps I am unenlightened, but I don’t think we should make national policy decisions that depend on worldwide goodwill and the domestic political circumstances of other countries.

Lessig criticizes the idea of a case-by-case reasonable search approach as fraught with too much uncertainty. He complains that, “At least until there is extensive litigation clarifying the question, the copyright owner needs to guess about what steps are adequate to avoiding the orphan works remedy; and so too must the potential re-user guess about how much search is ‘reasonably diligent.'” He is arguing against the common law. Yes, it may take a few cases before clear boundaries are apparent, but you can bet that they will be efficient. (See Posner, Economic Analysis of Law.) That’s the way the reasonable person standard in torts and throughout the law operates, and there’s a good reason why lawyers like that standard: it works and it is efficient. An inflexible categorical approach lends itself to unintended, unanticipated consequences.

Nevertheless, this is the approach that Lessig prefers. First, he says that “Any proposal to address [the orphan works] problem should therefore be triggered by the age of a work. The PDEA set 50 years as the trigger for an obligation by the copyright owner to take steps to maintain his copyright.” He would now change that to 14 years. As we explain in our paper, however, the crux of the orphan works problem is that a work will often have no identifying marks, including no date of creation or publication. In that case, how do you know if an orphan work you find is past the “trigger” age or not? We explain in our paper:

The Lessig/PDEA solution also offers no clear method to determine the age of a work. If a user discovers an apparently orphan work of unknown age, she can check to see if it has been listed in the new register [that is created by the PDEA]. If she does not find it there, that could mean either that (i) the work is not yet 50 years old, in which case the author is not under an obligation to register, or (ii) it is in the public domain either because its term has expired or because the author has failed to pay a tax and register at the 50-year mark. Again, the user employs the work at her own peril because the crippling uncertainty inherent in orphan works remains.

Additionally, Lessig would make unpublished works exempt from any orphan works treatment. Again, we explain in our paper,

This aspect of the Lessig/PDEA solution only compounds the already uncertain nature of orphan works because potential users would also have to ascertain whether a work has been published or not. For example, suppose that a researcher is preparing a film documentary and in the course of her research she finds in a library’s archive a series of unmarked photographs that she would like to use. The researcher has no idea who authored the photos or whether the photos were previously published. If she does not locate an entry for the photos in the [PDEA] register, this could mean either that (i) they were published and the photos are now in the public domain because the author did not pay the tax and register at the 50-year mark, or (ii) they were never published, in which case the author was never under an obligation to register and the photos are still copyrighted and not in the public domain. If the researcher uses the photos in her documentary she assumes the risk that they were never published and that their rightsholder may come forward and sue her for infringement.

Lessig is right that, “By recognizing that accessibility is an important value within the copyright system, and by indirectly placing upon the author some of the burden to maintain accessibility, the Report affirms that copyright owners have a role to play in making the copyright system function efficiently.” However, rather than creating a one-size-fits-all burden for all authors (registration after X number of years), we can more optimally limit burdens by allowing authors to choose how much (or how little) effort and resources they will expend in making themselves accessible based on how they value particular works. They are in the best position to appreciate how much they value their works and decide how much of a burden is acceptable to them in order to protect their work. Just the same, a would-be user is in the best position to determine how much risk they are willing to tolerate and therefore take more or fewer steps to find the author.

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