Public Knowledge (who works tirelessly on behalf of documentary filmmakers) announced on Thursday that two bills addressing orphan works had been introduced: Orphan Works 2008: House and Senate Bills Introduced. As usual, I urge you to read the bills. Public Knowledge has links to both of them. And read Public Knowledge's assessment. You're not going to get their type of assessment here. They thank the Congressional committees, they look forward to working on the bills. They seem realistic in their assessment of the differences between the two, noting the relatively "clean" Senate version and the House version's including many additional provisions that go much further in addressing the concerns of those copyright owners who view orphan works legislation as quite detrimental to their interests. But near the end of their observations they note that
[Visual artists will] try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen ...
Hmmm. I think the bill has already been poisoned. DOA. Too late even for last rites.
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. Ok. I've got my "horrible cynic" hat on now.
Basically, the House bill appears to take the position that there is likely to be an owner who will turn up, and all the proof that you tried your best to find them has to be assembled, certified, and all the groundwork for the impending litigation laid, ahead of time. If that's not pretty poisonous, I don't know what is. But wait there's more.
If the pre-use litigation-oriented requirements are not, in the abstract, enough of a deterrent, there is the opportunity for the industries themselves to erect barriers to use so high that the burdensome statutory requirements will seem like a walk in the park. They have the privilege of defining the "best practices" that the CO will install as part of what users must follow to get the benefit of using a work that, contrary to rampant fears, no one likely exists who cares about or would object to its use.
This sort of reminds me of what happened to the NIH OA statute the first time around (3 years ago). We ended up with a voluntary request for posting publicly financed research results to PubMed Central, instead of a mandate, in response to fear. The voluntary approach completely failed (surprise!) to fulfill the objectives of the law, and eventually, when it was obvious to everyone, it still took a monumental fight to get a bill through Congress that was not dominated by those who were the most fearful. Copyright industry captains have been wrong a few times before about what they think change will do to their industries.
And this is only round one, as Public Knowledge notes. The House bill (and the relatively more realistic Senate version) is only going to get worse, not better. My advice: if you're waiting for legislation to deal with orphan works, do not hold your breath. You'll expire.
Comments (3)
Thanks for this article.
Regards,
Posted by Darmowe usługi porządkowe | April 29, 2008 8:28 AM
Posted on April 29, 2008 08:28
I support Orphan Works legislation that benefits the public, including students and library patrons and other non-commercial users. I support Orphan Works legislation that places no greater burden on the public than it places on creators. I oppose Orphan Works legislation that adds to the burdens placed on creators. I oppose Orphan Works legislation that makes it easier for large media corporations to infringe the works of creators. I don't yet know how much of the proposed legislation does *any* of these things. So I've got to keep a careful eye on the proposals.
It's perplexing to see our librarians and curators and archivists and academics *not* in league with creators. Instead, the creators seem testy and angry. I've pointed out the irony elsewhere, the way politics makes for strange bedfellows: the large media corporations (who are only too eager to lock up as much IP for as long as possible, once they get their hands on it) are *eager* for Orphan Works. And the creators who make culture aren't. What's going on here? Are the creators deluded about current Orphan Works proposals? Maybe.
I know where some of the anger comes from. People who create culture don't often, don't always, have an easy time supporting themselves from their creative efforts. An Orphan Works proposal that allows large media corporations the same opportunities to exploit Orphans as the non-commercial public, especially those Orphans that have a living Parent, will certainly be unpopular with creators. Especially if legislation adds a burden beyond routine copyright registration and then further requires policing by creators. (Don't get me going with how easy it is to separate pictures from their captions and credit lines and metadata.)
Much of my understanding and experience comes from retaining the services of an NYC intellectual property and contracts attorney. I do what he tells me, and I've embraced his thinking as my own. In private e-mail communications he has repeatedly urged commercial artists to *register* their copyrights. He insists that an un-registered copyright is nearly useless. He insists that large media corporations know this and exploit this. And he gets particularly strident *not* about small infringers, not about the public, not about students, not about library patrons. His ire is reserved for commercial artists who refuse to register. His ire is *also* directed at large media corporations who, he insists, *know* how common and unhelpful-to-creators un-registered copyrights are. He insists that a common corporate business model has them infringe often and deliberately. He insists that media corporations *know* that most of their infringements won't even result in a slap on the wrist, simply because the copyright is (most often, overwhelmingly often) *un-registered* at the time of infringement. The profits to be made from routinely infringing overwhelm the costs of occasionally and provably and deliberately infringing a registered copyright. Every other infringement is ignored or settled for a fee no greater than the licensing fee the corporation would have paid if it hadn't been caught. He says corporate counsels have only two internal questions when getting a demand letter after their corporation infringes: Was the copyright registered at the time of infringement? And, if it was, can they easily prove that we deliberately infringed?
Those of us who support Orphan Works might avoid adding to the burdens placed on creators. They're not an enemy. If anything, our living creators are among the libraries' and museums' most impassioned patrons. They deeply value the locked-up cultural heritage embodied in the Orphans themselves.
Posted by Walter Dufresne | April 29, 2008 1:03 PM
Posted on April 29, 2008 13:03
Responding to this comment:"It's perplexing to see our librarians and curators and archivists and academics *not* in league with creators. Instead, the creators seem testy and angry."
Not all creators are opposed to an Orphan Works protection. Certain classes of creators have been vocal, including textile designers (and textile manufacturers with copyrights); one can understand how a textile design might get fake-"orphaned" more easily than some other creative work, given that it's hard to tag some textiles with identifying rights info. And the media photographers and some graphic-design folks have also been opposed to OWs, driven by fear of a bad-faith search being used pretextually to infringe. (Hence, the photographers seem to be endorsing the House bill, on the assumption that it will be useless and ineffective.)
I think sufficient safeguards against such bad-faith OW assertions are in place, but these groups have a deep history of opposing any perceived inroads on copyright--including fair use, Section 108, and so on.
But there are plenty of creators, including visual artists, who would welcome a usable and reasonable OW bill. The College Art Association supports OW legislation (though has strong criticisms of both current bills, especially the House version). There's a lot of misinformation about the current proposals circulating to scare artists.
Posted by Eve Sinaiko | May 1, 2008 3:08 PM
Posted on May 1, 2008 15:08