Sunday, May 11, 2008

Orphan Works Myths

For the past two years, several media organizations have been working on potential orphan works reform, and Congress is finally poised to take some action. What the heck is that, you ask? Filmmakers often encounter orphan works when they are making a documentary and need to use a clip for which they can't find the right's holder. Often, this person doesn't exist - maybe they died and the estate doesn't care about the work, or maybe they didn't register the work -there could be many reasons. As a filmmaker, you have no way to use this clip, no matter how important it is, because since you can't find the owner, you can't get permission and no one will insure the film or distribute it because the owner might surface and say - "hey bud, your film is famous now and you owe me a million bucks." Odds are likely that if you are a reasonable filmmaker and have done your research this won't happen, because you being a rights-holder yourself, you've looked far and wide and the person just doesn't exist.

Several groups have worked with the Copyright Office and proposed that if you do a reasonably diligent search, you should be able to use the clip - or any other orphan for that matter (writing, etc) - and if someone does show up and claim rightful ownership, the damages due to them should be limited - because you essentially exhausted all efforts. Congress seems to agree, and there is now legislation being considered which could remedy this situation. It would keep a balance of allowing use while protecting the rights of the creator. You can read all about it on Public Knowledge's excellent Orphan Works site.

Unfortunately, there's some folks out there who seem to be misunderstanding this whole legislation, and there's a lot of confusion about the effect of orphan works reform. Luckily, Alex Curtis of Public Knowledge (getting the sense this group is smart? You're correct) has posted a response to the myths out there. Read it on their blog or pasted below. Soon, several groups will be sending out info on how you can get involved, and when they do, I'll post the info here.


MYTH: The bills would take away copyright protection from every work a visual artist ever created!

FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.

MYTH: The bills would mandate registration of all visual arts in expensive, private registries.

FACT: Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.

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

FACT: Both bills would require a user to pay a reasonable compensation to an emerging owner. This compensation is defined as the amount the parties would have agreed upon had they negotiated a license before the use began. If a user refuses to negotiate with the emerging owner in good faith or pay the compensation within a reasonable time, both bills currently provide that the user would be liable for all the remedies currently available under copyright law including statutory damages, which could be as high as $150,000 per work. Statutory damages of this sort are really punitive damages, and since owners will be reasonably compensated to be “made whole,” user communities have proposed limiting damages to at most paying the owner's attorneys fees. A user’s desire to avoid having to go to court and pay double attorneys fees (his own and the owner’s) would provide a good incentive to any user to negotiate an appropriate license. Thus, the bills would provide a fail-safe means of ensuring that owners get compensated.

MYTH: The bills would institute registration formalities in contravention to international treaty obligations.

The bills impose no new registration requirements on owners.. While existing law does not require owners to register their works to claim copyright, it does obligate owners to register their works prior to infringement in order to receive statutory damages. The orphan works bills do not mandate any additional registrations beyond current law, neither to the Copyright Office nor to registries certified by the Copyright Office. To qualify for protection under the bills, a user may have to search both of these sources for the information about the owner. However, a user's obligation to search these resources does not create any requirement on owners to register their work.

MYTH: Any user could fake a “diligent search” and use the orphan works limitation to infringe. Couldn’t a bad actor falsify the records of their search?

FACT: Orphan works legislation does not make an owner more vulnerable to bad actors, nor will it make infringement any easier for bad actors. A user must undertake a diligent effort to find an owner, and that effort must be documented. A user that fakes a diligent effort would be considered a bad faith user, and would be on the hook for the full panoply of remedies under copyright law. If a user is going to claim this orphan works limitation, he’s going to have to plead it up front in court, and again up front in the discovery process, and he must produce the documentation of the search. This prevents him from hiding information or prolonging discovery. Also, the “pleading with particularity” requirement means that the infringer’s lawyer must sign his name to the fraudulent conduct. Even in worst case scenario, where a court does not find fraud, the owner still recovers reasonable compensation. The fact that the infringer must pay reasonable compensation makes fraud extremely unlikely. Why perjure yourself in federal court about conducting a search, when you’ll still be required to pay compensation. If you’re going to lie, you’re best off claiming that you never copied the owner’s work in the first place, and any similarities between your work and his are coincidental.


Anonymous said...

While recognizing that reform is needed for orphaned works, this bill does damage to visual and other creatives in the process. The myth/fact arguments you've published have been thoroughly debunked and explained across several web sites and with legal authority that this site does not cite.

For example, the use of the word 'database' instead of registry is misleading as the two words are synonymous in every meaningful way. Though the word 'database' keeps us barely on the right side of Berne, the effect of an 'optional' registration (the orphaning of work) has the same effect as a mandatory registration.

By also limiting the possible liability of using works whose author may 'show up' (i.e. catch you using work that doesn't belong to you), you've successfully created an environment in which it is obviously cheaper to 'fake due diligence' with the knowledge that you'll only ever have to pay the small number of artists that catch you the fair wage you would have paid in the first place.

What I find most disturbing about your arguments is the very fundamental idea that somebody's work can be confiscated and used in the name of 'hey, it was just laying there.' If I want to create a painting, then ignore it for 30 years, that's my right. If I want to create a painting and keep it from being published or used by anybody, that is my right. The rights you are promoting are, "I want what you created, therefore I'm going to take it and use it and, if you catch me at it, I'll pay no more than the fair price AS IF you had planned to sell it to me."

Anonymous said...

I support this Bill.

Fair use has been gutted, we can have a private free exchange of information on the internet or we can have copyright laws. There is not room for both.

I will not sacrifice freedom of speech, privacy and the basic realities of the internet to maintain outdated business models.

Ken Dubrowski said...

Some backers of the controversial Orphan Works bill say they’re launching a campaign to “Rescue Orphan Works.”

From whom?

We’re not the ones interested in infringing other people’s copyrights.
We’re only interested in protecting our own.
If the “Rescue Orphan Works” folks really want to use only true orphaned work, they’d join us in asking that this bill be drafted accordingly.
From our written statement submitted to the Senate April 30, 2008

We believe the orphan works problem can be and should be solved with carefully crafted, specific limited exemptions.

• An exemption could be tailored to solve family photo restoration and reproduction issues.

• Usage for genealogy research is probably already covered by fair use, but could rate an exemption if deemed necessary.

• Limited exemptions could be designed for documentary filmmakers.

• Libraries and archives already have generous exemptions for their missions. However, if they believe they need expanded access to work whose authors are hard to find, we’d suggest that Congress adopt a variant of the Orphan Works clearance system in use in Canada.

Canada has created a statutory licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners.

The license is issued by the Canadian Copyright Board. Decisions are made on a case-by- case basis through application to the Board. If the Board is satisfied by the applicant’s efforts of e-mails, phone calls, written correspondence, approaches to copyright collectives, Internet searches, etc., then it may issue a non-exclusive license which is valid only in Canada, subject to any terms and conditions it sees fit.

A system such as this would serve potential users of orphaned work by allowing them to clear rights in an orderly, verified way. Therefore we respectfully ask that the Senate conduct further hearings to resolve the specific problem of providing public access to true orphaned works. Our objections to S.2913 – which incorporates the proposals made by the Copyright Office – is that its effects cannot be limited to old or abandoned copyrights.

There’s no need to “rescue orphan works” from artists.
And you don’t save orphans by making new ones!

Help solve the real orphan works problem: Don't Let Congress Orphan Your Work

2 minutes is all it takes to write Congress and protect your copyright: