Lessig’s orphan works proposal unworkable

Lawrence Lessig has a new half-hour presentation on his blog where he outlines his opposition to the Copyright Office’s recommendations on orphan copyright works that were the basis for the proposed Orphan Works Act of 2006, and which were very similar to the proposal Bridget Dooling and I made. He also proposes his own alternative solution, which is much like the proposed Public Domain Enhancement Act he helped craft and which Bridget and I have critiqued. I find his new articulation to still be completely unworkable. Let me explain.

First, I should say that Lessig and I are on the same side. The first half of his presentation, in which he explains the roots of the orphan works problem and its importance, is great and I couldn’t agree with it more. The cause of the orphan works problem, fundamentally, is the elimination of formalities. Like him, I would love to go back to a copyright system that included opt-in formalities like we had at the founding and for much of our history. However, I don’t think this is a politically feasible alternative and my thinking is shaped by this reality.

Lessig’s critique of the the Copyright Office’s proposal is twofold. His first concern is that it applies immediately, so that it is unfair to those who have created works under the assumption that no marking or registration or other special step was required to attain full copyright. Second, that the “reasonably diligent search” standard in the proposal is unclear.

I think he’s right that this is a bit unfair to creators of existing works who would have to take some steps–a new burden–if they want to make sure they are easily identifiable. However, as Lessig says in his presentation, the orphan works problem is an immediate problem. If, as he explains, films are turning to dust because of the problem, then maybe we need an immediate solution. Lessig’s own solution would also impose a burden on existing authors, it just gives them a 14-year grace period before they have to comply with the formality. The Orphan Works Act of 2006 included a provision that would have given creators two years before the Act took effect. Perhaps that’s not enough and it needs to be longer. Fourteen years seems a bit too much to me, but it’s negotiable. Let’s just keep in mind that time is of the essence.

As for the “reasonably diligent search” standard, what Lessig and many others overlook is that in most cases the searches that people will conduct will turn up owners, and hopefully users will acquire permission. There also seems to be competing notions of how burdensome these searches will be.

One idea is that they will be sham searches, that after a cursory search a user will just be able to use a work that really isn’t orphaned without making a serious attempt at getting permission, and that courts will absolve these users of any liability. As I’ve explained before, courts will not accept sham searches and will give real meaning to “reasonable,” just as they do in every other part of the law.

The other idea is that the standard is too burdensome. Lessig enumerates all the factors the Orphan Works Act and the Copyright Office propose should be considered in determining whether a search was reasonably diligent and finds them to be quite a lot. The way I see it, though, if you want to use a work that is potentially under copyright and limit your own liability, why shouldn’t you have to jump through a bunch of hoops? A creator, on the other hand, would only have to take one of the steps that is listed as a factor in a reasonable search, such as registering with a private registry (something Lessig embraces in his own proposal).

As for Lessig’s proposal, on his blog he outlines when a limitation to copyright would apply:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there’s no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published “United States works” only — not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

To me, the problem with his proposal is that it doesn’t seem like it’s orphan works he’s addressing. An orphan work is a work that one finds but has no idea who its owner is or even if it’s copyrighted. The uncertainty is crippling because if one uses it one runs the risk of being sued for stiff damages. Therefore works that would otherwise spawn new creation (and therefore promote the progress of science) go unused.

Let’s say I find a photograph in my school’s archive that I would like to reproduce in a book I’m writing. The photo has no marks on it and there’s no other information, a true orphan work. How would Lessig’s proposal apply?

Well, I could use the work with limited or no liability if it is not registered. But wait a minute. Foreign creators don’t have an obligation to register. Is my photo a foreign work? I have no idea. There’s no way to tell. The uncertainty is still crippling and the orphan works problem is not resolved. Lessig argues that we would overcome this by encouraging other countries to adopt the same scheme. Unfortunately, that exhibits much more faith in the other 159 signatories to the Berne Convention (and our own State Department) than I’m comfortable with.

But let’s overlook the problem of foreign works for the sake of argument. I search the registries and the work does not appear. Does this mean I can use the photo with limited or no liability? Well, if the work is more than 14 years old and the creator didn’t register it, then yes. But wait a minute. Maybe it’s not in the registry because it’s less than 14 years old and the creator has no obligation to register, in which case using it would be infringement. Which one is it? Again, crippling uncertainty, which means this is no solution.

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