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.

Filed Under: copyright, copyright office, fair use, formalities, hostage works, orphan works, registration

If Artists Don't Value Copyright On Their Works, Why Do We Force It On Them?

from the questions-to-ponder dept

In William Patry's book, Moral Panics and the Copyright Wars, there's an excellent chart that highlights the fact that many content creators who have copyright available to them clearly don't value that copyright very much. The chart looks at the rates of copyright renewals in 1958 and 1959. As you hopefully know, back then, you had to register your work to have it covered by copyright, and you had to renew it to keep that copyright. Yet a huge percentage of content creators simply chose not to renew their copyrights, because they knew there was little or no value in the copyright itself. Depending on the type of product, the lack of renewals paints a pretty stark picture: only 7% of books had the copyright renewed. Only 11% of periodicals. Only 4% of "works of art." Music was only 35%. In fact, the only type of work that had a renewal rate higher than 50% was movies, which came in at 74%. If looked at with a common sense filter, it seems obvious that this suggests that the content creator clearly is no longer getting any benefit out of the copyright at that stage, and thus reverting the work to the public domain makes the most sense. So it was quite disappointing when we changed our laws in 1976 to the point that people didn't even have to register their copyrights in the first place, and never had to review, but that they automatically get a copyright for a ridiculously long amount of time (much longer than was available in 1959). Now, you can still register, and there are significant benefits to copyright holders for doing so, so many people still do.

So it's interesting to see Tunecore ask the musicians who use its service whether or not they register their copyrights, with only 56% saying they absolutely do (found via Hypebot, who incorrectly suggests that the others don't get a copyright at all): What's fascinating here, of course, is this means that there are 44% of the musicians on Tunecore who don't really see the need to have a registered copyright, and yet they still end up with a copyright which they're unlikely to ever use or enforce. That suggests a system way out of whack with the stated purpose of copyright law. This is content that can and should be available to make the public domain more fruitful and to enable new creative works -- and yet it gets locked up anyway, even though the very people copyright law is supposed to protect clearly don't value what copyright gives them. So why do we still automatically give them copyrights, thereby harming the public domain, while adding little to no benefit to the content creators themselves?

Filed Under: copyright, formalities, registration, value
Companies: tunecore

Did The RIAA Really Just Come Out In Support Of 'Opt-In' Copyright? [Updated]

from the that-would-be-big dept

Here's some potentially big news. The RIAA, who has always appeared to be in favor of ever expanded copyright, may actually be changing its mind. Two separate reports out of the National Academies' meeting on "the impact of copyright policy on innovation" note that RIAA president Cary Sherman apparently stated that he now believes an opt-in registration "formalities" approach to copyright might make sense. Derek Slater, on Twitter, summarized Sherman's statement as:

"my opinion is that pre-Berne system, requiring some sort of registration, makes more sense today."

Of course, the MPAA and the BSA apparently disagreed, with the BSA saying copyright should definitely be opt-out rather than opt-in. That said, it is nice to see the MPAA come out in favor of flexible fair use policies, though I'm sure that's as an alternative to actually improving copyright law.

I've asked the RIAA for comment (updated below) on whether or not this represents a change of position for them, and whether the group would now support an opt-in copyright system that only gives copyright to works that are formally registered (as we had for many, many years). If true, this would really be a huge deal. While an opt-in system has many problems, if set up properly, it's a lot better than the current opt-out system, which obliterated the public domain. An opt-in system at least makes it much easier to feed the public domain.

Update: The RIAA responded to my request as to whether or not this was a policy change, in response, I was told:

His basic point (and I'm quoting from his remarks) was that "we need better ways to distinguish when copyright is a beneficial property right, and when copyright is a meaningless and unwanted right." He was later asked what he meant by this, and he responded that it may be time for creators to affirmatively assert copyright, rather than have it automatically granted to them whether they want it or not. He also explained that this was a personal view, not an RIAA position.

The note also pointed out, correctly that there really "is no way to opt-out" of copyright today. So, while it's not the official RIAA position, I'm still really surprised that Sherman would feel this way, but kudos to him for making a statement that would seem at odds with the RIAA's standard position on copyright.

Filed Under: cary sherman, copyright, formalities, opt-in, riaa
Companies: riaa