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.

Orphan Works resources

Public Knowledge has assembled a great set of resources about orphan works, including an overview, a timeline, and (my personal favorite) a list of myths and facts about orphan works legislation. They’re all worth a look.

Public Knowledge has been very involved in developing the orphan works bills and pushing them through Congress, so its perspective is understandably positive. The resources do a good job of countering the Illustrator’s Partnership arguments against orphan works legislation, but none of them address the criticisms coming from the user side, that these bills are too watered down to be useful. I would be interested to see someone from Public Knowledge reply to some of the concerns raised by Georgia Harper. The bills are moving forward but a lot of committee markup is still to come, and there may still be a chance for the final version to satisfy librarians and other user advocates.

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.

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.