Lessig’s orphan works proposal still unworkable

by on May 20, 2008 · 30 comments

A923E041-59A0-4EA3-89E7-71F6FCE3D838.jpgLawrence 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.

  • http://www.publicknowledge.org Gigi Sohn

    Jerry -

    I agree with you that Lessig’s proposal won’t solve the orphan works problem. Also, it’s a political non-starter. I’ve addressed the op-ed at length here: http://www.publicknowledge.org/node/1584. Thanks. Gigi

  • http://cordblomquist.com Cord Blomquist

    Once again Jerry, excellent analysis.

  • http://www.publicknowledge.org Gigi Sohn

    Jerry -

    I agree with you that Lessig’s proposal won’t solve the orphan works problem. Also, it’s a political non-starter. I’ve addressed the op-ed at length here: http://www.publicknowledge.org/node/1584. Thanks. Gigi

  • http://cordblomquist.com Cord Blomquist

    Once again Jerry, excellent analysis.

  • Tonsotunez

    When you get right down to it, when has Lessig been right about anything?

  • Tonsotunez

    When you get right down to it, when has Lessig been right about anything?

  • http://cordblomquist.com Cord Blomquist

    Once we agreed to making everything ever written, photographed, recorded, or coded automatically copyrighted, didn’t we doom ourselves to this fate of uncertainty? Compulsory licensing is to blame!

    Even if Lessig were to mandate that all future works–both domestic and foreign–must contain a label showing year of creation and what rights the author maintains, uncertainty would still exist.

    It seems to me that since we’ve had automatic copyright for so long that the burden simply has to be on the potential user of a work to verify that it is not copyrighted.

  • http://cordblomquist.com Cord Blomquist

    Once we agreed to making everything ever written, photographed, recorded, or coded automatically copyrighted, didn’t we doom ourselves to this fate of uncertainty? Compulsory licensing is to blame!

    Even if Lessig were to mandate that all future works–both domestic and foreign–must contain a label showing year of creation and what rights the author maintains, uncertainty would still exist.

    It seems to me that since we’ve had automatic copyright for so long that the burden simply has to be on the potential user of a work to verify that it is not copyrighted.

  • http://jerrybrito.com Jerry Brito

    Cord, First things first: compulsory licensing is something else; I think what you mean is copyright without formalities. Formalities are the things that one has to do to gain copyright protection for a work. In the past these have included registration with the government and notice (marking the work).

    You’re absolutely right that once we abandoned formalities in the Copyright Act of 1976, the orphan works problem was inevitable. The best solution to the orphan works problem (and a host of other problems) would be to reintroduce formalities. That is basically what Lessig is trying to do in his proposal.

    However, to truly reformalize we would have to redo the Copyright Act and pull out of the Berne Convention. These things are not politically practical. Lessig tries to get around the impediment posed by the Berne Convention by having his registration requirement apply only to U.S. authors, but that is also politically impractical (imagine a law that burdens American authors and not foreign ones!) and also creates the host of problems I outlined on my post.

  • http://jerrybrito.com Jerry Brito

    Cord, First things first: compulsory licensing is something else; I think what you mean is copyright without formalities. Formalities are the things that one has to do to gain copyright protection for a work. In the past these have included registration with the government and notice (marking the work).

    You’re absolutely right that once we abandoned formalities in the Copyright Act of 1976, the orphan works problem was inevitable. The best solution to the orphan works problem (and a host of other problems) would be to reintroduce formalities. That is basically what Lessig is trying to do in his proposal.

    However, to truly reformalize we would have to redo the Copyright Act and pull out of the Berne Convention. These things are not politically practical. Lessig tries to get around the impediment posed by the Berne Convention by having his registration requirement apply only to U.S. authors, but that is also politically impractical (imagine a law that burdens American authors and not foreign ones!) and also creates the host of problems I outlined on my post.

  • http://www.studio413.com Lloyd Shugart

    Comments»

    1. Lloyd Shugart – May 30, 2008

    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

    Tammy,

    full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/

    I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #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

  • http://www.studio413.com Lloyd Shugart

    Comments»

    1. Lloyd Shugart – May 30, 2008

    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

    Tammy,

    full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/

    I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950… #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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