Lawrence Lessig has an op-ed in the New York Times today calling the orphan works bill now before Congress “unfair and unwise.” He agrees that the orphan works problem is real and merits an immediate response, but finds fault with the bill because it is unfair to copyright holders who have relied on existing law and “because for all this unfairness, it simply wouldn’t do much good.” Lessig writes: “The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a ‘diligent effort’ is not going to be cheap.” Instead Lessig suggests an alternative reform:
Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.
For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.
This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.
I’ve addressed his concerns about fairness and have critiqued his proposal before, but I’d like to restate the latter here now.
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?
First, it’s a photograph, so game over, I can’t use it. He says the orphan works bill won’t do much good because it will be expensive for archives and libraries to take advantage of it. At least they will have the option. Under his proposal, all orphan works created since 1978 and all photographs would still be in the limbo that is the orphan work problem.
But overlooking that its a photograph, I could use the work with limited or no liability if it has not been registered by its copyright holder. 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. Once more it’s game over.
But again, 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 his proposal is no solution to the orphan works problem.
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