Perspectives on the new orphan works bill

Georgia Harper has a strongly negative critique of the new orphan works legislation that is well worth a read.

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.

Harper believes that if the bill passes it is likely to resemble the larded House version, and that it may get even worse.

After the bill was released, I was taken aback by the opposition of several bloggers to the Notice of Use registry in the House bill. On its face, I think requiring people to register their use of an orphan work is not a bad idea; over time, it would build a body of works that are recognized as orphans, and would make it easier for copyright holders to keep an eye on things in the unlikely event that someone mistakenly (and in good faith) identifies a work as an orphan when it isn’t. What I missed in my first reading of the bill, and what shrewder readers like Georgia Harper spotted, was that a registration requirement was likely to be cumbersome and expensive, and could end up acting as another deterrent to potential users. In other words, the House bill could actually make things worse.

Meanwhile, Kevin Smith takes a more hopeful position, though he also sees the bills as limited at best. He focuses on potential library uses of orphan works, particularly in digitization projects, which are also some of the uses I am most concerned about.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.

I’m inclined be optimistic about the possibilities that even a pandering orphan works bill would open up. Some academic libraries, including Stanford, the University of Texas, and the University of Michigan, are already developing tools, processes and workflows for researching the copyright status of digitized materials. That work should provide a good foundation if it turns out that libraries do need to comply with registration requirements or complicated “best practices” guidelines.

The Psychology of Creative Commons: A response in two parts

Paul Courant recently posted on his blog about changing his Creative Commons license from Attribution-NonCommercial (BY-NC) to Attribution (BY). It has me thinking about the significance of the different licenses, and it also has me wondering whether I should change mine. What follows is my meandering thought process.

For reference, here’s a page that describes all the CC licenses.

Part 1: What does your Creative Commons License say about you?

In his post, Courant writes about what he believes the NonCommercial restriction signifies to others, especially to people in business. He fears that a NonCommercial license marks the person using it as “anti-commerce,” and he is not anti-commerce (he’s an economist, after all) and does not want to be perceived as anti-commerce. This is really interesting. I’ve given some thought to what different CC licenses say about the people using them, but the possibility of appearing anti-commerce hadn’t occured to me.

Some of my opinions about the different licenses have made their way into workshops I’ve taught on the subject, but I’ve never considered these judgments systematically. I decided to give it a shot:

I call the Attribution license the “really generous license.” People who use this license are basically ceding all control over their work, granting blanket permission for anyone to do anything with it, even profit-making things. I assume that Attribution people are financially stable, but I also think of them as a little bit gutsy. I associate BY with people who are very dedicated to the cause of open content.

The Share-Alike (SA) set of licenses are also associated with Free Culturites in my mind, but in a slightly different way. These people care about promoting open content, but they do so in a way that I believe is both idealistic and naive. In my experience, Share-Alike licenses can be very confusing for people not already steeped in Open Source culture, and that limits the ability of those people to use SA-licensed works. For example, I spoke to someone who thought that he couldn’t use an unaltered BY-SA-licensed photograph in a conference presentation unless he licensed the whole presentation BY-SA. He had to sign the copyright over to the conference organizers, and therefore couldn’t apply a CC license, so he thought he couldn’t use the image. Share-Alike only applies to derivative works, but that’s a notoriously hard concept for non-lawyers to understand. As a result, I see SA licensors as people who put the cause of open content above the goal of maximizing future use.

[Leigh Blackall of Otago Polytechnic talks about his take on the limits of Share-Alike in an interesting interview on the Creative Commons blog].

I don’t think much about the No-Derivatives (ND) licenses, mostly because I don’t see them very often. My impression of ND people is that they want to share, and understand the potential power of CC to extend the reach of their work, but they are afraid of losing control. No Derivatives users, especially NonCommercial-No Derivatives users, are Creative Commons dabblers.

And then there’s the Attribution-NonCommercial license, which is the one I use, and it’s my favorite. I sell this license to my classes as a nice balance between sharing your work and protecting your interests. As long as the user is non-commercial – a librarian, a fan, a student – she can do whatever she wants with your work. If the user is planning to make money, she has to ask first. You’re still free to say yes, without compensation even, but you get to decide on a case by case basis.

This formula resonates with the people in my workshops, most of whom are either university faculty or librarians. When they use a NonCommercial license, they’re essentially granting permission to people like themselves: academics, scholars, teachers. People like them, making uses like they might make, are easy to trust. Commercial users, whose motives and methods are different, can feel less trustworthy.

This brings me back to Courant’s concern that profit-making enterprises see NonCommercial license users as anti-commerce, and his implicit suggestion that NC licensors put the cause of anti-commerce above the goal maximizing future use. I realized that in my case, he’s right. I do privilege the teacher, the student, the fan. I see their uses as more valuable, more worthy of my generosity, than the profit-makers’. Is that so wrong?

Part 2: Promoting the progress

Courant’s main reason for dropping the NonCommercial restriction comes from a combination of opinions about economic theory and copyright.

If you believe, as I do, that the purpose of copyright is to “Promote the progress of science and the useful arts”, then it is more important that the work be out in the world being read, and contributing to a larger discourse, than that strangers not be able to make money from it.

I do believe, as he does, that the purpose of copyright is to promote the progress. I love promoting the progress; I do it all the time. I think universities and governments should license everything they do under CC-BY, because maximizing access to scholarly and government works is so very important. But I struggle, as an individual, especially an individual at the bottom of the professional food chain, to feel comfortable offering up my work freely to the profit-makers. I want to contribute to the larger discourse, and I want my works to be read and my photographs to be seen, I just haven’t been ready to give everything away.

But Courant makes a compelling argument:

One maximizes the influence of the work by maximizing potential uses of the work, recognizing that commercial uses have just as much power to promote progress as non-commercial uses…

Maximizing influence sounds good, too. As an individual at the bottom of the professional food chain, I think a lot about maximizing my influence. What’s more, I tell people all the time about how Creative Commons (and Open Access) can help maximize their influence, increase their impact, improve their visibility. It follows that the freer you make a work, the farther it can travel.

When it comes right down to it, the chances that anyone is going to make any money at all from this blog are tiny. My pictures on Flickr are similarly lacking in likely financial value. This exercise is entirely theoretical. However, I am called upon with some regularity to advise people on the choosing of a Creative Commons license, and unpacking my beliefs about the meanings and significances of the different options has been very helpful, for me at least. It will certainly change my standard advice about choosing a license; I used to suggest BY-NC automatically, to everyone. Now I’m more likely to push BY, especially for projects that are meant to serve as resources for a broader community, like wikis or research guides.

Me, I’m sticking with BY-NC for the moment. But watch the sidebar; I might change my mind.

For real this time: New Orphan Works legislation

New Orphan Works legislation was officially introduced yesterday. Alex Curtis at Public Knowledge has written a clear and detailed overview of the two versions of the bill which briefly explains the orphan works problem and outlines the important differences between the Senate bill, which is “clean”, and the House bill, which has a lot of additional concessions to visual artists.

Opponents are already raising hell, but here’s hoping that the bill passes with most of its usefulness intact.


Apparently, the drafts of the Orphan Works legislation that I posted about and made available for download were intended to be confidential until they are officially introduced. I’m temporarily disabling the post until that happens, probably some time in the next day or two.

To be clear, I wasn’t party to any confidentiality agreement, but I’m hiding the post anyway because I think the bill is important, and I don’t want anything to stand in the way of its consideration.

Good timing: New draft orphan works legislation released

UPDATE 4/25/08: The legislation was officially introduced yesterday, so I’m re-publishing this post. Apparently, the House bill to which it refers has been modified substantially, so some of it is probably out of date. More soon.

Draft copies of a new Orphan Works Act were released by both the House and Senate today. It hasn’t officially been introduced yet, but there are links to PDFs of both versions at the bottom of this post. At this point, I haven’t read had a chance to read either closely, but here are some first impressions, based on a quick skim of the House bill, and an even quicker glance at the Senate bill. All quotations are from the House version. More will follow, after I have time to read both versions more carefully (and read what the experts have to say).

There are some substantial changes from the Orphan Works Act of 2006, at least one of which should please copyright holders concerned that orphan works legislation will erode their ability to control uses of their work, and another that will greatly diminish the usefulness of the act in the near term.

The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the bill (page 9 of the attached PDF):

Such filings shall include—

‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”

This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. Furthermore, there is a requirement that users of Orphan Works “include with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;” (page 5) which means that re-uses of orphan works will be marked and easy to identify.

(As an aside, I was just talking this afternoon with Jack Bernard, my copyright professor from grad school, about a comment on orphan works that he and his colleague Susan Kornfield submitted to the Copyright Office in 2005. Their solution was unique in a couple of ways; one was that they proposed calling resurrected orphan works “fostered works,” and the other was that they suggested the creation of a registry of fostered works that would make it easy for copyright holders to see if their works were being called orphans. Jack said that nobody, in all the discussion of orphan works he had seen, had ever considered their comment, or talked about it, or mentioned it. Not once. I joked that I would blog about it. And now, not five hours later, the newly released draft legislation includes a requirement that looks an awful lot like one of the solutions Jack and Susan suggested back in ’05. Neat.)

The second is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code” (page 15). This by itself is great news – we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources.

Here’s the downside: While for most works the act will take effect in January of 2009, for pictorial, graphic, and sculptural works, the act will take effect either after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” (page 17) or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.

Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse or just different.

And a last note to the angry artists: the following language was in the old version of the bill as well, and it still nullifies all your claims that orphan works legislation will permit people to steal all your unsigned photographs and images:

LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).

In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.

Here are links to the PDFs of the drafts. My understanding is that Senator Leahy and Senator Hatch plan to introduce the legislation later this week.

House Orphan Works Act of 2008

Senate Orphan Works Act of 2008

[Cross posted at the Copyright Advisory Network blog]