Tag: Orphan Works

Here I go again, trying to be constructive. But before I get there…

This Isn’t About You

I’d like to know what it would take to convince you, a visual artist, alive and creating today, that orphan works policy was not meant to apply to you? There are clearly tens of thousands of artists who are being scared out of the woodwork to write their representatives to stop orphan works legislation. If you’re one of these artist, who are savvy enough to know how to go to a website and click a button to write your member of Congress, then more than likely, if someone wants to use your work, they’re going to find you. Why? Because you exist. You’re with-it enough to be part of this debate, which in all likelihood means that after a user puts effort into finding you, you will actually be found.

George Washington Law School hosted a symposium on June 18 as part of their “Creative Industries in Transition: New Directions for the Digital Era” series. The talk was co-sponsored by BMI and was, therefore, unsurprisingly about the importance of performance rights organizations(PROs), such as BMI and ASCAP, and their place in the digital future.

In the House version of the orphan works bill there is a provision that creates a “notice of use archive,” or NUA. The idea is that after a search, but before use, a user of an orphan work would have to file a statement with the Copyright Office that she intend to use the work.

In this statement, she’d have to include a description of the work, any ownership info that she knows about the work, a summary of the search that was conducted, and her contact information. The Copyright Office would charge a fee for the service, probably at a significant price per page, as it has said in a letter to Congress (PDF).

Problems with NUA

We’ve previously said that this provision is needless and redundant, and for the record, it still is. Both bills already require a user to maintain documentation of their search, and the pleading requirements push that info at the front of discovery. Not only that, but these additional hoops can be expensive—

Visual artist groups have been up in arms about orphan works reform proposals for a long time. This opposition is based on misconceptions about reform proposals, which we debunk here. One of these misconceptions is that the orphan works bills currently before the House and Senate would require owners to act proactively to protect their rights. So lets talk about the idea of owners being active in protecting their rights.

Let me be clear. The orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. The bills would merely provide a way, with visual registries, to help owners identify themselves as creators of their works. Owners are free to use these services or not.

As Public Knowledge seeks to counter the sometimes exaggerated fears of a world in which orphan works legislation has been implemented, it is important to reiterate the purpose of the proposed Orphan Works bills. They seek to provide a solution to the unfortunate, and all too common, result of our current copyright system – the inability to track down copyright holders, even after a diligent search, and the resulting orphaning of their copyrighted works.

Ever since my policy blog and Huffington Post responses to Larry Lessig’s New York Times op-ed on orphan works last week, I have received a large number of fairly unfriendly comments and emails. I won’t quote them here for fear of being sued for copyright infringement (I wish I was kidding). Rather than respond to each one individually, I address the vast majority of the arguments raised in this speech, which I will be giving today at a conference at the University of Maryland University College. I look forward to a new barrage of comments.

I never like to disagree with my friends in public; particularly friends like Larry Lessig, who I greatly admire and who, through his 24-7 work as the first populist copyright reformer, made the existence of organizations like Public Knowledge possible.

Fear, Uncertainty, and Doubt is spread by those who would rather see the orphan works legislation fail. This is our third Myths and Facts report on orphan works.

Before today’s Myth and Fact, I wanted to let you know we have a new Orphan Works Overview page to give those new to the issue an 30,000 foot view, and we also have a page that lists out the Myths and Facts we’ve collected so far. On to today’s Myth and Fact…

MYTH: Unavailability of statutory damages means that owners cannot get compensated.

Orphan works policy says: after a fruitless but diligent search for the owner, a user may use a copyrighted work without fear of statutory damages as long as the owner is paid if he returns.

“Orphan Works” are copyrighted works — books, music, records, films, etc. — whose owner cannot be located. Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found. Presently, there are millions of such works in existence, all of which are unavailable to the DJs, filmmakers, collage artists, libraries, educational institutions and other creative professionals and institutions who would like to pay for the ability to display and use them. Why not just use them? Because if someone uses an orphan work and the copyright owner does emerge, that user can be found liable for infringement which carries legal damages of up to $150,000 per work.

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