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?
First of all, I found out that international law prohibits coerced copyrighting. So this bill is already a break from standard international policy (Berne Convention of 1971).
If, as a commercial artist, I outputted ten 5 MB images every day, which is reasonable for a professional artist from what I understand, that would mean I’m uploading about 18 gigabytes a year. Over 10 000 individuals in the United States name as their career “graphic artist.” That means that over the course of four years, which is one proposed test period for the bill, there would be almost 680 terrabytes of images to keep organized, from graphic artists alone (the bill would also affect writers, photographers, graphic designers, et cetera). All on one website (if the above changes were made to the bill). How many servers would it require to host that? The entire library of congress hosts only a tenth of that much information.
Second of all, I have doubts as to whether the government would take on the additional responsibility of hosting a copyright database that large considering
a) That it is currently 9 trillion dollars in debt
b) That no matter who wins this upcoming election, Americans are already pushing for expanded government programs, offices, initiatives, and spending, all of which will probably take priority on the national budget.
c) That the only reason this bill is on the floor at all is because of the big business lobbyists who trying to increase their profits by getting themselves access to orphaned images.
Why would the government go through all this trouble when the private sector is dying to do it for them?
As well as reopening room for Alexander Bell/Elisha Gray style controversies, another thing this bill does is assume that the only people producing images are professionals who have access to the information they need to protect there work. Many professional artists get their start when companies ask them for the rights to their nonprofessional work. If nonprofessionals aren’t aware of what they need to do to protect their work, greedy companies would have no reason to ask for these rights.
Big companies do not take actions with the interest of furthering culture or empowering creativity; they take action based on what will earn them money, and unless they are restricted, it is outside their nature to subdue a potential profit-making opportunity for ethical considerations.
I think the addendum to this bill you suggest would make it a viable, workable solution to the problem of copyright abuse. However; I think that if the bill focused more specifically on undue copyright retension rather than reworking the entire copyright system, it would be more effective.
Matt -
Your art wouldn’t be orphaned, though.
The Copyright Office database would be of works that are known, with as much certainty as possible, to be orphaned… I don’t know how much data that would be, but surely it would be a finite amount.
Therefore, anything not already in the database would be presumed copyrighted. Anyone could submit a possible addition to the database, but the Copyright Office would have the final word.
A friend of mine pointed out that a private company could charge a fee to perform the search for a possible orphaned work, and agree to assume legal liability in the event of a future lawsuit (which might well result from a false negative). I suppose the company would operate a bit like an insurance company in this respect, although of course it would have an incentive to not make mistakes and not get sued, to keep its profit margins relatively high.
If this imaginary database happened, and I was the webmaster, I would definitely publish an RSS feed of new additions to the database so that artists could make sure their work hadn’t been accidentally included.
The point is, I think this database thing has to be flipped on its head if the bill’s going to work at all… there’s a whole world of art out there, and it makes no sense whatsoever to try and index 99.9% of it in order to solve a problem affecting the other 0.1%.
(That should be “perform the search for the author of a possible orphaned work” in the third paragraph of the comment above. And why is my comment yellow?)
What about those creators of original content who do not have a computer or the financial means to obtain high resolution images of their work? What if a work is an installation piece? How would you ever document THAT in a visual database?
Many people incorrectly assume that all content is digital and it would be effortless to submit them to a database. There are plenty of works that are anything but digital. And the expense, alone, to comply with this attempted effort to protect one’s work would bankrupt rightsholders.
And what about the victims of Katrina? Many of those people were creators of original content and the lost everything. There is no way they or their heirs would be able to participate in this plan.
And let me remind you that the technology for the visual databases is not yet 100% guarnteed to match one work with another. Under these bills, the law would be enacted regardless- and we would see countless number of images instantly designated as orphans. The technology will not be ready for at least 10 years.
For these reasons and more, these bills are just plain unacceptable.
Gypsy Rose Lee -
Hi, thanks for commenting! You’re right; as I said in my post, the Orphan Works Act in its current form is definitely not good for artists. My suggestion was to make an official, government-run database for works known to be orphaned, and anything outside that database would be presumed not orphaned… which I think would preserve the intent of the bill, while still protecting artists.
I’ll remind you that for visual works the Act doesn’t go into effect for another 5-6 years (depending on which version of the bill you read), and even then, the Copyright Office has to do another report on the availability of visual databases.
That being said, I do very much hope that the bill doesn’t pass in its present form. Trying to get artists to archive every bit of visual art they’ve ever made is insane.
I didn’t mean to indicate in my post that I support the Orphan Works Act as it stands. I was simply trying to think of ways it could be altered to keep artists from having to go to the trouble and expense that you mentioned.
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