Imagine you are a researcher in 2050, researching the history of the Black Lives Matter
movement. But you've stumbled across a problem: almost every Tweet, post, video or
photograph with the hashtag #BlackLivesMatter that you want to use in your work is an
orphan work (i.e., works whose owners are impossible to track down, but are still
covered by copyright). You'd like to ask permission but all you've got to go on are
usernames from defunct accounts. Where do you go from here?
Last week, the Copyright Office accepted responses to its Report on Orphan Works and
. (Full disclosure, I represented the Internet Archive in this proceeding,
but all views here are my own). But that Report has no answers for our hypothetical
researcher; it doesn't once mention or consider the question of what we are going to do
about the billions of orphan works that are being "born digital" every day.
Instead, the Copyright Office proposes to "solve" the orphan works problem with
legislation that would impose substantial burdens on users that would only work for one
or two works at any given time. And because that system is so onerous, the Report also
proposes a separate licensing regime to support so-called "mass digitization," while
simultaneously admitting that this regime would not really be appropriate for orphans
(because there's no one left to claim the licensing fees). These proposals have been
resoundingly criticized for many valid reasons.
Another reason to add to the pile is that it is exclusively focused on analog
orphans -- books, photographs and other materials in physical formats gathering dust in
small local library collections or arcane institutional collections. These materials are
culturally important, and scholars have shown
that many have fallen into a 20th-Century
digital black hole. But the black hole that could engulf digital orphans is poised to be
Each day, billions of photos are uploaded to platforms like Instagram, Facebook,
Snapchat, Flickr and What's App. Similarly, 400 hours of video per minute are uploaded
to YouTube alone. While some professionals use these platforms commercially to exploit
their creative work, the vast majority of today's copyright owners probably don't even
know what copyright is. They are simply documenting and sharing their lives. Look, for
example, to the rise in popularity of social video sharing services such as SocialCam,
Vid.me, Periscope, and Meerkat.
Most of the content online today is created by amateurs. Much of it is also created
anonymously or pseudonymously, with no real name attached to the account. And the
vast majority of users of these platforms are under 35. To make matters worse, as new
services become popular, users will inevitably move on, leaving their accounts inactive.
What will become of the photos, blog posts, videos and other content that is posted
online every day -- much of it being created by teenagers with no interest or expectation
of commercial exploitation -- that will be left behind on these platforms? Copyright law will
protect those works for 70 years after these prolific teenagers die.
We are looking down the barrel of a serious crisis in terms of society's ability to access
much of the culture that is being produced and shared online today. As many of these
born-digital works become separated from their owners, perhaps because users move
on to newer and cooler platforms, or because the users never wanted their real identity
associated with this stuff in the first place, we will soon have billions upon billions of
digital orphans on our hands. If those orphans survive the various indignities that await
them -- host platforms going under, being deleted for more server space -- we are going
to need a way to think about digital orphans. They clearly will not need to be digitized so
the Copyright Office's mass digitization proposal would not apply. However, the public
deserves access to the cultural heritage being amassed on digital platforms.
It might be easy to dismiss these concerns, to say that there's little social value in much
of the content being created by amateurs. But I suspect researchers and historians of
the future will beg to differ.
New technologies have already allowed us to develop whole new systems of
communication that have no non-digital equivalent, no physical record: hashtags, emoji,
reaction .gifs, LoLcats, just to name a few. Remember the Occupy Movement? And the
"we are the 99%
" meme? People often told their personal economic stories by holding
up a handwritten sign in a photograph that would be posted to Twitter or Tumblr. Any
understanding of the consequences of the economic collapse of the late 2000s would be
incomplete without this digital context.
The means for creating extremely rich records of our daily lives are everywhere. People
are voluntarily and enthusiastically documenting big events and small moments.
Technology platforms are now places of record, although they are not necessarily
designed as such. Our very way of knowing about ourselves as a society will be shaped
by the sorts of access we will have to these digital records, not only of major political
events like elections, but also of everyday life.
We need to start thinking about these digital orphans today, before we have a culture
crisis on our hands. Perhaps this should be our call to rethink the broken policies that
created the orphan works problem in the first place: extremely long terms and lack of
formalities. Perhaps we could pass legislation that would establish a safe harbor for
those who rely in good faith on rights information available in the Copyright Office's
registration database. Perhaps fair use will evolve to allow full public access to orphans.
Of course any solution will also have to manage the significant privacy issues that will
pervade these works as well, but that's a problem for another article. But anything as
burdensome as the Copyright Office's current proposal will be woefully inadequate to
handle the staggering numbers of born-digital orphans in the future.
Lila Bailey is a copyright attorney practicing in the Bay Area. She also teaches Internet Law at Berkeley Law.