Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself
from the missing-the-point dept
For many, many years, we've been discussing the "problem" of "orphan works" under copyright law. These are works that are not available any more, and where it simply is not possible to find the copyright holder to seek out a license. Of course, this problem is almost entirely self-created. It's the result of a forced switch from a system that required registration to get a copyright, to one where everything is automatically covered by copyright. Combine that with ever-expanding copyright terms and you have a recipe for a world in which the vast majority of works become "orphaned" while just a tiny few have any legitimate reason to remain under copyright protection. Millions of books, millions of photographs and hundreds of thousands of films are now considered orphaned works -- unable to be either used or licensed -- with many simply fading away. In fact, some have reasonably advocated that we should be referring to them as hostage works rather than orphaned works. These works haven't been "abandoned." They need to be freed, not given adoptive parents.In the past, attempts at legislating a solution to the problem with these hostage works have fallen flat, often after facing significant pushback from authors and photographers who spin ridiculous stories about how orphan works legislation is really about legalizing the "stealing" (of course) of their works. Of course, that's never actually the case. Pretty much all attempts at dealing with orphan/hostage works involve requiring significant attempts at locating copyright holders.
Either way, the US Copyright Office has released a giant report on what to do about "orphan works," which is an interesting read, even if the Copyright Office still can't bring itself to admit that the "problem" of these hostage works has to do almost exclusively with two legal changes it has long supported: getting rid of formalities (registration) and extending copyright terms. Instead, it acts as if such hostage works are a problem wholly unrelated to all of that -- and in need of new policies to "fix" the problem that the old legal changes created, rather than rolling back those bad policies.
The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users to "register" their use of orphaned works with the copyright office:
In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements;Think about that for a second. Rather than fix the actual problem by requiring registration by the copyright holder, the Copyright Office is recommending, instead, that the user have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together:
The Office believes that the principal advantage of a Notice of Use requirement is that copyright owners can use it to become aware that their work is considered orphaned and more easily respond to users. As noted above, the goal of any orphan works provision should be to unite owners and users.Um, you know what would be even better at that stated purpose? Requiring the copyright holder to register in the first place so that there would be no such thing as an "orphaned" work and any user could much more easily find the copyright holder in question. But that's not even remotely considered in this report.
And the really amazing thing is that any time people bring up the idea of requiring registration/formalities for copyright holders, they are always dismissed out of hand as "too burdensome" for copyright holders. Yet, here, when requiring the same damn thing for those wishing to use hostage works, the Copyright Office dismisses the concern out of hand because it also provides some other ways around it.
The other bizarre thing about the report is that it seems to be dripping with contempt for fair use. The report, rightly, notes that there have been a few recent important court rulings -- such as the Hathitrust and Google book scanning cases -- that have recognized that fair use is often a perfectly reasonable tool for dealing with some of the issues raised by hostage works. However, the report basically says "Sure, but that could change."
The Copyright Office notes that the judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.In response to this, the Association of Research Libraries points out that the Copyright Office is not just wrong, but it's overthinking things:
The Copyright Office’s denigration of fair use as a solution to the orphan works problem is disappointing. What the Copyright Office fails to acknowledge in its analysis of recent fair use jurisprudence is that fair use is a fairly predictable doctrine. As Professor Pamela Samuelson noted in a 2009 article entitled, Unbundling Fair Uses, “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” The Copyright Office’s suggestion that because fair use is flexible and fact-specific it is insufficient to address orphan works, is also misleading. By analogy, while the Copyright law does not have an explicit limitation or exception for the use of VCRs or DVRs, specific legislation to ensure that recording using such devices is lawful is not necessary because it is widely understood that such activity is fair use.The ARL also points out yet another example of the Copyright Office treating the symptom rather than the disease by making the problem worse. That is, while the Copyright Office insists that fair use is too much work to use as a defense, it ignores the fact that its own "solution" for orphan works is a tremendous amount of work for users:
Furthermore, the Copyright Office suggests that even where fair use may be a defense, “many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” The Copyright Office fails to recognize that its proposed burdensome legislation that requires extremely time and resource intensive searches as well as notice of use requirements, could also cause users to forego the use of the work. Additionally, where legislation appears overly complicated, while institutions and corporations may make use of it, individual users may find compliance difficult.In short, rather than fix the basic problem that created orphan/hostage works in the first place with the obvious solution of going back to a system that requires formalities (registration), the Copyright Office, instead, thinks the best solution is to put a huge burden on the public. This is not how the law is supposed to work. Copyright, as designated in the Constitution, is supposed to "promote the progress" by providing the public with greater access to works. Yet, once again, we see the Copyright Office focused on putting greater burdens on the public, rather than working on making works more available and accessible.
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Filed Under: copyright, copyright office, fair use, formalities, hostage works, orphan works, registration
Reader Comments
The First Word
“Re: Re: Copyright mistakes
"I would have a huge problem if someone took a photograph of mine and started selling it at a profit, while cutting me out of any gains."Without registration, how woudl they find you to give you money?
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Who owns the copyright when a publishers simply goes out of business without any legal instrument to transfer the copyright to someone else? Everybody tends to assume that the author and their heirs own the copyright, but for most works it is the publisher and their successors, or heirs when a business ceases on the death of the owner.
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Re:
Which is why many pre-1976 copyrights are no longer vaild...but few people realize it!
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Re:
The Public, which never, ever gets considered in *any* copyright discussions.
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Re:
My understanding is that it's extremely complicated depending on the nature and terms of the bankruptcy. This is compounded by a chain of failures over the years . e.g. company B buys out company A and gets most, but not all, its portfolio, a few years later B is bought out by corporation C and it sells off some assets to D, who goes out of business and is picked up by E, who reverts some rights back to the family estate but this estate is disputed since the author died when A had the rights and the family could never agree on the will, which F picks up some other assets...
This is why they're "orphaned" - it's not that there is no applicable copyright, it's that it's extremely difficult and expensive to discover who the copyright actually belongs to.
"Everybody tends to assume"
Assumptions are great, but they're not something you can risk your own business on by commercially releasing something that people believe is in the public domain, but may later get you sued out of business when a previously unknown copyright holder emerges. That's why most people don't bother trying, and that's why orphaned works are such a massive problem.
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Re:
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Re: Re:
Do you license rights to an outside publisher or do you publish your own books?
One of the (pre-Bono revision) problems in licensing outside publishers is that, when renewals came due, often nobody renewed because they thought the other party handled it!
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New hobby for lawyers
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The situation is more than merely stupid.
So if 14 to 28 years was long enough when things moved at a much slower pace, why in hell are we doing "Life of author + 70 years" today when information can be transmitted world wide within seconds today?
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Re: The situation is more than merely stupid.
Because whereas the majority of profitable works back then were owned by individual authors and local publishers, nowadays they're owned by major corporations who never want a potential sale to be "lost" to the public domain. Since they're the ones writing the laws, they get what they want.
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Sure, and in 95 years or so that will solve the problem. But unless you want all *existing* copyright holders to go back and register everything they weren't required to register, that's not going to work. Anyway, that's not going to happen... it would be a violation of the Berne Convention. We'd have to modify or violate our international treaties for that to work, so I think we can forgive the Copyright Office for not proposing it.
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Re:
The Berne Convention requires copyright holders to observe creators' "moral rights" on work-for-hire, but the US ignores that aspect as "too onerous".
So what's one more thing for the US to ignore?
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Re:
Tough shit, do it anyway. After all, that didn't stop them in 1976 when they extended all copyright *retroactively* and during the 1998 Sonny Bono extension too.
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Makes sense to me
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The most elegant solutions would be requiring copyright holders to send in a freaking postcard keeping the ownership up to date. If they skip checking in, it goes public domain. In my experiences of late, it is amazing that one can basically transfer the rights to a monopoly using a cocktail napkin and putting it in your wallet.
Copyright has become a useful tool to putting the burden of owning a monopoly on everyone else. We can't afford to protect it, you pay our costs. We can't bother to keep records up to date, you try and make some money and if its enough we'll send the lawyers to crush you. We can't remember if we own it, assume we do or else.
Why do we keep ignoring the latter half of the act to focus way to much energy on the first half. It is no longer for a limited time, and the public gets only the benefit of lawsuits for daring to do that human thing of sharing.
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Re: Re:
Then no one has to worry or file oodles of paperwork to cover their behinds. Hell it might even make some of the copyright transfers out there get updated so people looking to work out a deal on active rights could find the correct entity to speak with about acquiring rights to use the material.
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Why would anyone file a notice of use while having to fear that the copyright owner will come out of nowhere and expect exorbitant rates for the use after the fact, thus nullifying any work they might have put into a derivative work?
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After a suitable maturing time, the works become adults, with the right of self-ownership. The correct word is emancipated.
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Contrary position
Now, if the creator registration requirement was applied only for works where the creator did not release the work under a gratis license, you could get the benefits proposed by the article without burdening people who choose to give away their work (subject to certain terms). Creators who expect to charge for their work could treat the registration as a cost of doing business.
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Re: Contrary position
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Re: Re: Contrary position
This a solution seeking a problem. If a "user" wants to use a work and can't get permission for one, it can probably find another suitable item to use in its place.
And not in reply to you but to the general hoi polloi:
"Just register it" is not viable for creators for every damn thing they publish. There may be fewer creators than users, but they make lots of things. Do the math!
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Re: Re: Re: Contrary position
No. The entire problem is that orphan works cannot have permission obtained until copyright expires, by the very nature of the system. Since the expiration date keeps getting removed far away from an individual's natural lifespan, it's effectively infinite and therefore the current system doesn't allow for orphan works to expire at all. In fact, the current system only guarantees that the pool of orphaned works will increase every year.
"If a "user" wants to use a work and can't get permission for one, it can probably find another suitable item to use in its place."
So, in situations where a work is locked up, we just forget it ever existed and move onto something else? I'm glad I grew up in a time before this mindset became so prevalent, as a lot of work I truly appreciate in every medium has utilised the public domain quite nicely. Some of it produced by the same corporations who had no qualms using the public domain for their own purposes, but claim the industry will die if their own past works are allow to be used in the same way.
This only makes sense if you have no appreciation for cultural history and have no taste for anything not produced for the mainstream by a major corporation.
The system is extremely problematic for the rest of us - and that's just those of us who wish to consume older works, let alone those artists who wish to create new works based on the public domain as those generations before them were allowed to.
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Copyright mistakes
We need to go back to some parts of the old system.
Copyright should not be automatic. Most people won't ever care if something they write or photograph gets a copyright, so do away with that.
Copyright terms. I think TechDirt may have had an article showing that renewal of books after about 40 years or so was very low. Who's really going to want to read Sydney Sheldon's Orchid Beach after 40 years? So bring back non-automatically renewing terms. I suggest a total of 5 14-year terms, which would still give the author 70 years.
Copyright was never about making sure that content creators get paid. Copyright is about forcing works into the public domain so that everyone can use them. The State just happens to graciously allow them a "limited time" to control the works until it becomes public domain.
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Re: Copyright mistakes
Pre-1976, it was 28 years (with proper registration), then another 28 years (with renewal registration), then after that 56-year-total run, the story/book/movie/tv show became PD, no ifs, ands, or buts!
If you didn't renew at the 28-year point, it fell into public domain.
That's what happened with the 1940s Superman cartoons.
The copyrights expired 28 years after they came out in 1941-43.
That's why the toons are available from so many DVD companies!
Warner Brothers managed to acquire the original film elements and released the best-quality editions.
But for the less-picky (or cheaper) customer, there are numerous lower-quality copies from other companies.
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Re: Re: Copyright mistakes
The best term for copyrights is probably not more than 70% of the expected life span of the population. If it's 80 years, that would be a 56-year term. If it drops to 65, the term would be 65.5 (hey, I'll let you round it up to 66.) But auto-renewals? No.
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Re: Copyright mistakes
I would have a huge problem if someone took a photograph of mine and started selling it at a profit, while cutting me out of any gains. What gives another person or corporate entity the right to take my work and sell it to others? After I die, the photo can go public domain, but while I am alive, the photo is mine and you have to license its use from me. People that care about the future should release their works to the public as part of their Last Will and Testament.
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Re: Re: Copyright mistakes
So... you'd be one of the people taking the time to register your copyright then, yes?
"What gives another person or corporate entity the right to take my work and sell it to others? "
What gives them the right to retroactively remove such works from the public domain, where they rightfully passed under the terms in force at the time they were created? Yet, I notice that you ignore this situation that has actually happened in favour of a random fictional situation that would only happen if you were too lazy to protect your own work. Hmmm....
"People that care about the future"
I like the way you framed that - people who care about the future vs. people who care about immediate profit at the expense of it. Apt, I think, for this whole argument.
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Re: Re: Copyright mistakes
Without registration, how woudl they find you to give you money?
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Because it wasn't bad enough already
Apparently when they say that registration is 'too much work', what they actually meant was that it was too much work for the owners of the copyright, as they seem to see nothing wrong with demanding others register their works in case they might draw a lawsuit or legal threat down the line.
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Re: Because it wasn't bad enough already
Pre-1976 companies were sending in every possible copyrightable thing in to overwhelm it.
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An even better fix...
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Governments don't function well
The Social Security Administration says there are currently over 6 million people in the United States who are over 100 years old. Thousands of these numbers are being actively used for wages or benefits. They have no plans to fix it.
Kinda sounds like what the Copyright office will become.
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Re: Governments don't function well
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I notice you state 'people who were too lazy to protect their rights' but you forget that it is supremely easy these days to remove copyright notices and credits from images. Even if registered, there are too many who think 'I found it on the internet so it is free for use' - we need education on copyright and an overhaul of the system - but not to for-profit industries, if I have to register it should be to the copyright office and it should be free.
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Creators shouldn't be the ones running around to make sure their works aren't stolen. Users should be the ones to find the creator. I can understand if old works are difficult to source but there is no excuse for assuming new works are orphans.
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Re:
Well, the argument about orphans isn't about new works, it's about things that are threatened to be erased from history so Disney can make another 20 years of profit off something they made before anyone currently working there was born. The issue right now is that those works should already be public domain, but greedy assholes keep withholding them from the public, in violation of the agreement that existed at the time they were produced.
If you have another way of protecting those works from being destroyed without reverting to the manual registration that used to be the norm, let's hear it. Just don't give me any crap about "it's too hard", because I can bet I can name several orphaned works that are far more valuable than anything you've ever produced, and my interest is protecting those, not making your life easy.
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