Making the Orphan Works Act work for everyone
As a copyleftist, I admire the intent behind the Orphan Works Act of 2008 (H.R. 5889 and S. 2913). At present, as far as today’s artists and historians are concerned, orphan works—those for whom the creators, or the creators’ beneficiaries, cannot be located—might as well be locked in a vault. No one can reprint or remix these works for fear of their owners suddenly appearing and suing for copyright infringement. The bill would limit the user’s liability in these cases, and orphan works would be available to our culture once more.
However, a closer look at the bill reveals a legal gray area that would damage formerly clear-cut copyright infringement cases. Users would be allowed to assume that a work is orphaned after conducting and documenting a “reasonable” search for the creator, and whether they had done so would need to be determined on a case-by-case basis. This is particularly troubling for visual artists, whose work often becomes separated from their byline.
The U.S. Copyright Office, in its infinite wisdom, has proposed that the private sector should create protection rackets huge databases of non-orphaned images, in which artists would presumably pay to register their entire body of work. I have another idea.
Rather than multiple databases of non-orphaned images, there should be one finite database of works which are known to be orphaned, maintained by the Copyright Office. If someone found a work that she thought might be orphaned, but that wasn’t listed in the database, she would submit it to the Copyright Office, which would perform the search for the creator. (I imagine that the staff at the Copyright Office could be trained to do a much better job than the average computer user.)
Using this method, the legal gray area mentioned above would be gone. The user either asked the Copyright Office to do a search or he didn’t. If he didn’t, use of the work is copyright infringement, QED. If he did, any infringement would really be the Copyright Office’s fault, so it would be responsible for compensating the artist. As a result, the Office would err on the side of caution when determining a work’s status.
My main fear is that the Copyright Office could leave “subversive” or “obscene” orphan works out of the database, effectively censoring them.
Whatever form the Orphan Works Act eventually takes, it needs to preserve the presumption of copyright that currently keeps artists safe. What other ways could the Act be amended to better protect artists?
