Lessig on orphan works in the NYTimes

Someday I will stop blogging about orphan works, but today is not that day. Today, our man Lawrence Lessig, creator of Creative Commons and cyberlaw expert extraordinaire, has an op-ed in the New York Times about orphan works, and I’m helpless before the impulse to link it: Little Orphan Artworks.

Lessig comes down strongly against the current orphan works bills.

The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government…

The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. 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. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.

Lessig goes on to propose his own solution, one that he has proposed before: after a limited time of automatic copyright protection, creators must register their works in order to have the term of copyright continue. If you’re interested, you can go digging through the public comments on orphan works at the U.S. Copyright website to find an earlier incarnation of this suggestion.

Lessig concludes with an argument central to the success of Creative Commons, and one that should be a priority for any real attempt at copyright reform. (Emphasis added).

A hired expert shouldn’t be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.

I agree wholeheartedly, even though simple and clear copyright laws would put me out of a job.