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What's all the hubbub about "Orphan Works" ?

What is an Orphan Work?

Depending upon whom you ask changes to copyright law proposed under "Orphan Works" legislation is either a ground breaking advance to further the creative juices of academic, scholarly and commercial creators, or legalized theft of the efforts of authors, cartoonists, photographers, graphic artists and others. While there are some legitimate points to be made in some parts of the proposed legislation it goes much further than necessary to address those points and goes too far in making it unreasonable and costly for creators to get fairly treated in regard to their works. The House version is H.R.5889. The Senate version is S. 2913. The New York Times posted a short, easy to understand, summary of the problem with the proposal.

Technically an Orphaned Work is any work where the creator is unidentifiable or unlocatable, regardless of the age of the work. It extends to both published and unpublished works, and includes both U.S. and foreign works. It includes any creative work which would normally be protected under today's copyright legislation but where the party who wants to use it can claim they are unable to identify or locate the rights holder after a dilgent search. What must be done meet the requirements of "a diligent search" is not clear, especially if the author of the image is completely unknown.

Current Law

Currently, you don't have to register your creative works to own the copyright. You own a copyright as soon as you create the writing, graphic, photograph etc. Registration does provide some additional rights, such as statutory damages (getting recovery without having to prove an actual loss) but today even with non-registration you can stop the unauthorized use and recover any proven fair value.

Burden of Proof

Under the proposed legislation infringing person is supposed to submit proof that they did a reasonable search. However, identifying information is relatively easy to remove. If the infringer claims that they discovered an image without sufficient information to perform a meaningful search how does one refute that in a cost effective manner?

The creator would have the burden of disproving that claim (proving they had such knowledge). That is, to prove that the user could not use the protection under the Orphan Works provisions the creator would have to establish exactly how a "resonable search" would have identified the creator. Under today's rules recovery for unregistered works is limited but the burden of proof of unauthorized use is much more balanced. This burden will be especially difficult to meet if, as is allowed under current law, the work is not registered.

No Injunction for future use of transformitive works

Under current law the copyright holder not only owns rights to the original creation but also to adaptations, transformations and other changes to the work. Under current law a copyright holder can obtain an injuction against the publishing of such deriviative works.

The proposed Orphan Work legislation prohibits injunctions when the user of an orphan work "recasts, transforms, adapts or integrates the [orphan] work with the [user’s] original expression in a new work of authorship…." This ensures that the publication of transformative works that may include the entirety of an "orphan work" will not be able to be stopped by a court. An orphan works user must pay "reasonable compensation" should the orphan works owner reappear, but the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to. The cost of establishing that may exceed the actual fair market value, thus the creator recovers nothing and in any case can never recover an amount to equal what they would have received had their been a fair negotiation. Proponents state that they are seeking language "that makes it clearer that the monetary value of an orphan work, particularly one that has been out of circulation for a long time, is low, if not zero." Um - if it has no value then they don't need it, right? When someone uses another's work they are getting value from it.

A fair proposal

Proponents of this proposal claim that they are not attempting to evade fair payment. But obviously if they are seeking to use the work, and find the need to use such work to be compelling enough to undertake a thorough search for the author, there must be some value there. Why, then, should such users be entitled to use the work cost free? Instead they should be required to pay the higher of a statutory amount or fair market value, into trust on behalf of the copyright owner. The copyright owner is thus protected as to the solvency and ability of the user to pay the required amounts.

While this legislation is presented as being driven by universities, libraries and museums seeking to preserve such things as private letters that isn't what is truly driving the legislation. http://www.law.duke.edu/cspd/orphanworks.html and http://www.llrx.com/features/orphanworks.htm What truly drives the legislation are (a) large companies who will benefit by newly required copyright registration, and (b) those who want to profit from your creative works without paying for them. Did you take a photo and share it on your blog? Oops you failed to register and now anyone can take it and add it to their stock photo site. There are valid exceptions needed, but these should be narrowly and specifically drawn to address those valid exceptions rather than gut the current state of the law.

Complete undermining of unregistered copyright protection

As a purely practical matter, not by the language of the proposal, under the Orphan Works legislation a creator is forced to pay to register every single image, photo, sketch, blog, web page and other creative work, or entirely lose any right to control the use of those works. For the typical creator that involves tens of thousands of items to be registered. Quite a nice revenue generation stream for the companies who act as registries.

If the Orphan Works legislation passes everything you have ever created must be registered or it is fair game. And even if you do register it is not at all difficult for a thief to remove the evidence of registration, claim that your work is an orphan work, and get free use of it. Even if you catch them and can prove that your work was even registered, your recovery is so limited it is unlikely to cover the costs of enforcement. "[T]he possible monetary relief in these cases [is limited] to only ‘reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced." All they have to say is "Gee, there was nothing on the work to indicate the creator, and gee we looked for the registration and didn't find it." Uh huh, we don't have the image matching technology or the bandwidth to use it to provide sufficient protection in searching registry databases. So they will be able to claim they looked and you get nothing. Wait a minute! What happened to the concept that if you didn't create it, and you can't PROVE it IS in the public domain you can't use it? If someone never faces any risk greater than paying market value for using a work, why would they bother pay for it in the first place? Their ability to claim innocent infringement will be far easier and cost effective than the creators ability to pursue litigation to establish intentional infringement.

Let's use a little example. A clip art provider is surfing the web looking for more images to add to their collections that they then sell. The clip art provider is scanning MySpace pages and comes across this image. The clip art provider writes to the owner of the MySpace page and asks "I'd like to use that image on my clip art site. We will pay you $10." And the mySpace page owner writes back and says. "It isn't mine. I don't remember where it came from." So now the question is, exactly what steps are sufficient for the owner of the Clip Art site to find the creator of the image? Let's say the clip art site owner writes back. "Did this have a copyright notice on it?" And the MySpace page owner says "yes, but it was ugly, so I erased it. Sorry, I don't remember what it said."

And at this point we are assuming honesty. Exactly what is going to prevent commercial enterprises from "washing" works free of any evidence of their creator by using such social networking sites? How does one prove that is what was done? Is such a burden on the works owner a fair burden? Under current law the rule is simple. If you didn't create it, and if you can't prove it is free of copyright, then you can't use it.

Current law protects everything we create from the moment we create it. That is as it should be. It is partly about commercial value, but it is also about not unfairly profiting from the works of another. Just because the creator does not recognize or desire to PROFIT from their work is no reason to deprive them of control over whether OTHERS republish or otherwise use the work for their own purposes. The Orphan Works legislation protects the infringer instead of the creator. There is a heavy market today for "content" to attach to any revenue generating web site. Today those who seek free content are limited to sources such as usenet archives and wikipedia. The burden is on the party seeking to use another's work to determine its status and the right to use such work. This legislation reverses that. Under this legislation every blog commentary, every musing, every web page becomes fair game as such is easily detached from the source and republished while it is highly unlikely that such authors will have the means or motivation to register every word they right on the off chance that they may need to protect it from another profiting from it.

The January 23, 2006 U.S. Copyright Office Orphan Works Report states "For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’s recommendation would make such markings mandatory ...Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner."

Removing such identifying information, however, is completely trivial.

The proponents of the legislation focus on works they claim have no value, such as a letter from one person to another where the letter gets its significance due to historical value. But the legislation isn't restricted to academic or library or museum uses. It opens the door to unfettered commercial use by anyone.

To fight this legislation you must make your voice heard. You can get your representatives contact information from http://www.usa.gov/Contact/Elected.shtml. Keep your communication short, polite and to the point, but do communicate. Explain how this legislation affects YOU. How much do you create, and can you, as a practical matter, actually register all you create? Have you ever put a photo on any on-line service? Let's say you were out playing with the family dog and you took some really great shots of the dog leaping in the air with the Golden Gate Bridge in the background. If you don't register it any one can take it and use it for anything. Did you quick work up some graphics for your web site? Don't forget to register each one. Did you forget put the actual copyright information on every photo you posted? Too bad, it is now available for anyone to use. Yes, IF you registered you can stop them later, but you can't recover anything for the value the user got out of it. And you can't recover for the value the user got BY using it. It sounds the same, but it it isn't. If someone wants a photo to dress up their web site ordinarily they have to PAY to use someone else's work. And under current law if the photo is registered and someone fails to make that payment I get the fair market value, what they would have had to pay PLUS statutory damages might apply. Under Orphan Works legislation I pay the costs of enforcement and can collect absolutely nothing.

There is an even worse problem, if it is possible, another party can register your images and snatch your rights away entirely. To prevent that you would have to object within a very limited time. That means you will have to monitor EVERY submission ALL the time. Never mind that you have thousands of creative works, and that the database would be swarming with hundreds of thousands of images for you to check. It is entirely impracticable. Even text, which is theoretically easier to match than images, do we have the technology and bandwidth to keep on top of it. Today I write a blog, If I don't register it immediately then every day that passes increases what I must search to ensure no one else is trying to register it.

For more information see the IPA Orphan Works Resource Page http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

See http://www.copyright.gov/docs/regstat031308.html and annotated with commentary.
H.R.5889 Orphan Works Act of 2008 (Introduced in House) Beginning April 24, 2008 [With commentary]

Supporter's view