For many, many years, we've been discussing the "problem" of "orphan works" under copyright law. These are works that are not available any more, and where it simply is not possible to find the copyright holder to seek out a license. Of course, this problem is almost entirely self-created. It's the result
of a forced switch from a system that required registration to get a copyright, to one where everything is automatically covered by copyright. Combine that with ever-expanding copyright terms and you have a recipe for a world in which the vast majority of works become "orphaned" while just a tiny few have any legitimate reason to remain under copyright protection. Millions of books
, millions of photographs and hundreds of thousands of films are now considered orphaned works -- unable to be either used or licensed -- with many simply fading away. In fact, some have reasonably advocated that we should be referring to them as hostage works
rather than orphaned works. These works haven't been "abandoned." They need to be freed
, not given adoptive parents.
In the past, attempts at legislating a solution to the problem with these hostage works have fallen flat
, often after facing significant pushback from authors
who spin ridiculous stories about how orphan works legislation is really about legalizing the "stealing" (of course) of their works. Of course, that's never actually the case. Pretty much all attempts at dealing with orphan/hostage works involve requiring significant attempts at locating copyright holders.
Either way, the US Copyright Office has released a giant report on what to do about "orphan works,"
which is an interesting read, even if the Copyright Office still can't bring itself to admit that the "problem" of these hostage works has to do almost exclusively with two legal changes it has long supported: getting rid of formalities (registration) and extending copyright terms. Instead, it acts as if such hostage works are a problem wholly unrelated to all of that -- and in need of new policies to "fix" the problem that the old legal changes created, rather than rolling back those bad policies.
The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users
to "register" their use of orphaned works with the copyright office:
In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements;
Think about that for a second. Rather than fix the actual
problem by requiring registration by the copyright holder
, the Copyright Office is recommending, instead, that the user
have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together:
The Office believes that the principal advantage of a Notice of Use requirement is that copyright owners can use it to become aware that their work is considered orphaned and more easily respond to users. As noted above, the goal of any orphan works provision should be to unite owners and users.
Um, you know what would be even better
at that stated purpose? Requiring the copyright holder to register in the first place
so that there would be no such thing as an "orphaned" work and any user could much more easily find the copyright holder in question. But that's not even remotely considered
in this report.
And the really amazing thing is that any time people bring up the idea of requiring registration/formalities for copyright holders, they are always dismissed out of hand as "too burdensome" for copyright holders. Yet, here, when requiring the same damn thing for those wishing to use hostage works, the Copyright Office dismisses the concern out of hand because it also provides some other ways around it.
The other bizarre thing about the report is that it seems to be dripping with contempt for fair use. The report, rightly, notes that there have been a few recent important court rulings -- such as the Hathitrust
book scanning cases -- that have recognized that fair use is often a perfectly reasonable tool for dealing with some of the issues raised by hostage works. However, the report basically says "Sure, but that could change."
The Copyright Office notes that the judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.
In response to this, the Association of Research Libraries points out that the Copyright Office is not just wrong, but it's overthinking things
The Copyright Office’s denigration of fair use as a solution to the orphan works problem is disappointing. What the Copyright Office fails to acknowledge in its analysis of recent fair use jurisprudence is that fair use is a fairly predictable doctrine. As Professor Pamela Samuelson noted in a 2009 article entitled, Unbundling Fair Uses, “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” The Copyright Office’s suggestion that because fair use is flexible and fact-specific it is insufficient to address orphan works, is also misleading. By analogy, while the Copyright law does not have an explicit limitation or exception for the use of VCRs or DVRs, specific legislation to ensure that recording using such devices is lawful is not necessary because it is widely understood that such activity is fair use.
The ARL also
points out yet another example of the Copyright Office treating the symptom rather than the disease by making the problem worse. That is, while the Copyright Office insists that fair use is too much work to use as a defense, it ignores the fact that its own "solution" for orphan works is a tremendous amount of work for users:
Furthermore, the Copyright Office suggests that even where fair use may be a defense, “many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” The Copyright Office fails to recognize that its proposed burdensome legislation that requires extremely time and resource intensive searches as well as notice of use requirements, could also cause users to forego the use of the work. Additionally, where legislation appears overly complicated, while institutions and corporations may make use of it, individual users may find compliance difficult.
In short, rather than fix the basic problem that created orphan/hostage works in the first place with the obvious solution of going back to a system that requires formalities (registration), the Copyright Office, instead, thinks the best solution is to put a huge burden on the public. This is not how the law is supposed to work. Copyright, as designated in the Constitution, is supposed to "promote the progress" by providing the public
with greater access to works. Yet, once again, we see the Copyright Office focused on putting greater burdens on the public, rather than working on making works more available and accessible.