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.

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.

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.

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

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.

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]

The point is that, as a result of the post’s high Google ranking, I’ve had a number of comments from the previously-mentioned angry illustrators, upset about what they believe orphan works legislation will do to their livelihoods, and I feel compelled to respond.

There is a lot of misinformation about the potential Orphan Works Act being spread by the Illustrators’ Partnership, most of which is embodied in Mark Simon’s recent article, “Mind Your Business: You Will Lose All The Rights to Your Own Art” (the lies begin in the title). Illustrators all over are swallowing these falsehoods whole, and have taken it as their personal mission to make sure no Orphan Works Act ever passes. A few people out in the blogosphere have done a nice job of addressing the many specific inaccuracies floating around – Meredith Patterson and kynn both go into great and entertaining detail – and I won’t address them here.

Here, I’m concerned with the assertion, made by Mia in a comment on my last post, that orphan works legislation “is a ludicrous scheme dreamed up by greedy corporations”. It’s not. It’s just not. For the last few years, major champions of orphan works reform have included Lawrence Lessig, Duke’s Center for the Study of the Public Domain, Eric Eldred, and The American Library Association. And don’t forget Register of Copyrights Marybeth Peters. These are individuals and organizations dedicated to serving the public good, to preserving the founding principles of copyright law, and to promoting the Progress of Science and useful Arts. They’re policy wonks and librarians.

Why do wonks and librarians care about orphan works? Because we see every day the terrible impact that ever-extending copyright terms are having on the ability of ordinary people to find, share, and build upon the creative works of the past. Because we are watching unique materials in our collections – fragile books, classic film reels, historic photographs – crumble, with no clear legal protections for those of us would like not just to preserve those materials, but resurrect them and introduce them to a new generation of users and researchers.

I can brush off a lot of the lies about potential orphan works legislation as just poor fact-checking, but when someone lumps me in with “greedy corporations” – the very corporations that got us into this copyright mess – I take it personally. The public benefit that would come from a reasonable orphan works act is real, and it is great. Librarians see it. Policy wonks see it. Many scholars and creators see it, too. Orphan works legislation is not about authorizing giant corporations to steal from starving artists. It’s about opening up a vast store of resources that have been made inaccessible through a series of bad policy decisions and that, in the age of the Internet, have new potential to reach and affect millions of people who never could have found them before. Orphan works reform was dreamed up by wonks and librarians, because we care about the public, we care about progress, and we want to do good.

I’ve been interested in the orphan works problem since my first year of grad school, when I gave a presentation about it in my copyright class. This was right around the last time it looked like we might get an Orphan Works bill, and I remember checking the Copyright Office website every week to make sure I hadn’t missed anything good. Three years later, still nothing. It has been a real lesson for me in the excruciatingly slow pace of lawmaking.

First there was the recognition that orphan works were a problem that was only going to get worse. That happened when? Shortly after the Sonny Bono Let’s Extend Copyright Terms Again Because Almost Infinity Isn’t Long Enough Act in 1998? Earlier? Then Eric Eldred filed his complaint in 1999, and the Eldred v. Ashcroft verdict was finally handed down in 2002. Three years passed before the Copyright Office’s Notice of Inquiry in 2005. Then the Orphan Works Act of 2006 went nowhere. Now it’s 2008, and the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing.

Here’s hoping something comes of it. Photographers and illustrators have been objecting strongly to all orphan works legislation, and I think they have some legitimate concerns about the ease with which their works can be separated from their names, but that doesn’t mean a reasonable orphan works bill wouldn’t have a tremendous public benefit overall. It’s long overdue.

[Update: I've written a follow up to this post, here]