Public Domain enhancement Act

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

The public domain enhancement act is a legal alternative to the 2006 (and following 2008) proposed bills which have also been cited in this bibliography. It was proposed in 2005 and was a catalyst for the Copyright Office’s notice of inquiry.

In Eldred v. Ashcroft it was argued that the 20 year increase of the copyright extension due to the Sonny Bono Copyright Extension Act was unconstitutional. The defeat of this argument was the birth for this proposed legislation. The main points are the following:

-    50 years after the copyrighted work was published, the rightsholder has to pay a $1 fee. If the copyright owner doesn’t pay the fee for 3 years in a row, the work enters the public domain. If she does, the bill calls for the hiring of a copyright agent, a person responsible for receiving requests about the copyright. The Copyright office would then have to create a public database which matches all the books with renewed copyright protection, with the respective copyright agents. 
-    An estimate describes only 2% of the works copyrighted between 1923 and 1942 have continuous commercial value. The copyright owners of the other 98% would be unlikely to renew their copyright term, and their works would pass into the public domain. Under this assumption, 90% of the works copyrighted between 1923 and 1952 would pass in the public domain within 3 years.
-    The bill prohibits the advance payment of the renewal fee, as that would counter the functionality of the fee itself.
-    The bill does not conflict with the Berne convention since it applies only to works created in the United States. Although the Berne convention prohibits any formalities in order for the creator to enjoy her rights, it does not prohibit the imposition of formalities on creations in the nation of origin.

This source is important for my argument because it is the second (out of the four: 2006-2008 Orphan works act, 2005 Public Domain Act, Lessig proposal, Google Book Search) solution to the orphan works problem. As such, it will be compared to the Google Book Search.

Google book copyright settlement

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current, and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is the actual settlement awaiting court approval. As a source, it is imperative for my argument because it delineates the fate of orphan works in relation to the Google cyber-library, as well as the structure and function of the Book Rights Registry. It is the single source describing how the Google Book Search project could be the private-sector solution to the problem, offering an alternative to the –so far insufficient – orphan works legislation.

The agreement will essentially provide the following:
-    Access to 20% of the content of copyrighted books. Before the agreement, access to copyrighted books was restricted to the snippet view (only some sentences around the search terms were provided). More content could be displayed (some pages before an after the search term) only after explicit agreement between Google and the rightsholder. Now, the default amount displayed is 20%. In case the rightsholder wishes Google to display less, display bibliographical information only, or to remove her book from the index altogether she can opt out of the Google Book Search project by contacting Google.
-    Opportunity to purchase the book online and store in a personal “electronic bookshelf.” That means that the purchased books will be available for online reading whenever the user logs in to her Google account. Copy/ Pasting will be limited to 4 pages, while printing will be limited to 20 pages of material, with a watermark that identifies the work as copyrighted.
-    Access to all the online material for sale through institutional subscriptions. In this way, U.S. Colleges and other organizations will be able to allow access to the digitized library to their faculty and students.
-    Free, full-text, online viewing from at least one computer in every US public library.
-    The creation of the Book Rights Registry whose function it will be to track down the rightsholders and distribute the payments earned though the 2 aforementioned pathways (Institutional access, private purchase). It will also distribute revenues earned from ads placed next to the displayed book. The Book Rights Registry will be a not-for-profit organization which will store and update rightsholder information. As well as actively searching the rightsholders for every work, the Registry will provide an incentive for rightsholders to surface and claim their works because it will distribute the revenues collected by Google.

The agreement resulted from a US lawsuit, so its effects are only valid for US users. It must also be approved by the court first (expected in May 2009).

Google’s Response to the Notice of Inquiry Regarding Orphan Works

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is the Response to the Notice of Inquiry Regarding Orphan Works posted by the US Copyright Office, by Google.

The response highlights Google’s mission (“to organize the world’s information and make it universally accessible and useful”) and provides the main functions of the Google Print project. The project has since been renamed Google Book Search.

The Google response states that orphan works exist in a literary “purgatory” because they are not old enough to enter the public domain, but not young enough to be commercially useful to the author. It provides evidence for the claim that most rightsholders, given the chance, would allow their work to enter the public domain before the statutory time limit has been reached. Google argues that the release of orphaned works to the public – focusing on Google Book Search as the means to achieve that – will benefit the public in general, and goes on to propose legislative action that would achieve this.

Google calls for the creation of a “simple, accurate and reliable means” of determining:
(a) the contact information of the rightsholder or (b) whether a work has been labeled “orphaned” or not. In other words, Google proposes a registry that tracks every work to its rightsholder. In case of failure, the work should be labeled as “orphaned.”
Secondly, wishes a change in the Copyright Act to (a) “preclude those who rely upon this information from infringement liability while (b) ensuring that no copyright holder loses her copyright due to her failure to adhere to a formality.” So, even though artists who infringe on the copyright of an orphaned work should not be held liable, the orphan work’s rightsholder should be able to claim her rights on her work. This seemingly self-negating term is explained in the document. In case the rightsholder for an orphan work surfaces and claims her rights, the infringer is given a grace period in which she shall discontinue the use and distribution of the orphaned work, or negotiate a license with the rightsholder.

The proposal is not completely safe against bad faith copyright infringement, but I suspect it was written with the Google Print project in mind and not the rights of the authors. It is interesting to compare and contrast the proposal with the Google settlement. The backbone of the Book Rights Registry was already present in 2005. The settlement, however, is a better solution and does not provide the safe harbor for bad faith infringers. As such, this source strengthens the case that the Google Book Search project created a limited but viable solution to the orphan works problem.

The LCA’s response to the Notice of Inquiry Regarding Orphan Works

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

Attached above is the link to the Library Copyright Alliance’s (LCA) report, in response to the Orphan Works Notice of Inquiry by the United States Copyright Office. Its main contributing factors, pertinent to this discussion are:
-    the exact figures of a survey which provides the percentage prevalence of orphaned works
-    evidence for large digitization efforts
-    case studies in which the orphan works problem was encountered

In the first pages of the report, the LCA reports mentions the digitization effort of the Core Historical Literature of Agriculture, by A.R. Mann Library at Cornell. Out of the 1000 books searched, 397 were still in copyright, and 198 titles were orphaned. The figures are further broken down into other categories. The data suggests how prevalent orphan works really are.

It also mentions other broad digitization efforts across the academic landscape. It places the Google Book Search project within the era of the Information age, and within the national motion towards digitization of information on other media. It is also suggestive of another factor: If the digitization effort of Google brought about the birth of the Book Rights Registry (BRR), would/ could similar digitization efforts give birth to similar Registries. Arguably, such a cooperative system of multiple Registries should act as a safety net that would catch most of the rightsholders before the sink into obscurity and their works become orphaned.

Lastly, the report gives a plethora of real life examples (cases) where the orphan works problem was encountered, and was detrimental to the creation of a derivative work. This brings the statistics from the first section to life, and makes the point that the orphan works problem is commonplace in academia.

H.R.5889: The Orphan Works Act of 2008

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is a bill introduced to the House on April 24th 2008. It builds on, and should be read in conjunction with the Orphan Works Act 2006. Neither is complete without the other. The 2008 version was chosen to be included in this bibliography because it is more recent, and links back to the 2006 act wherever necessary. The Senate passed a similar amended bill on September 27 2008.

This source is important for my argument because it provides the current legal background and the proposed legislature regarding orphan works. The aim of this (and the 2006 bill) is to ensure easier access and use of orphan works. I will try to highlight the inefficiencies of this bill, and mention how the Google Book Search project might address some of those inefficiencies.

Mainly, the bill limits the penalty for the infringement of copyright in an orphan work, provided the infringer proves that:
-    The infringer performed a “reasonably diligent search.” This had been defined in the 2006 Orphan works act as the following:

`    (I) is `reasonably diligent' only if it includes steps that are reasonable under the circumstances to locate that owner in order to obtain permission for the use of the work; and
(II) is not `reasonably diligent' solely by reference to the lack of identifying information with respect to the copyright on the copy or phonorecord of the work.

(ii) A reasonably diligent search includes the use of reasonably available expert assistance and reasonably available technology, which may include, if reasonable under the circumstances, resources for which a charge or subscription fee is imposed.

-    A Notice of Use was filed with the Register of Copyrights before the work was used
-    The infringing work credits the original rightsholder, if known

Permits that exclude infringers from the “reasonable compensation” requirement after the rightsholder has claimed her rights are given if the infringement is not associated with any commercial advantage, or if the infringing use of the work is dropped immediately after receiving notice of the infringement.

The law, finally, requires the Register of Copyrights, to: (1) build an electronic database to facilitate the search for “pictorial, graphic, and sculptural works” that are subject to copyright protection; and (2) “study and report to Congress on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.”

Report on Orphan Works – A Report of the Registry of Copyrights

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is the official report published by the United States Copyright Office in January 2006. In January 2005, the Copyright Office issued a “Notice of Inquiry Regarding Orphan Works” and invited organizations and individuals to respond with concerns and suggestions on the orphan works problem. The report is a collection of the responses, the official proposal the Copyright Office made to the legislature. It provides:
•    A definition for the term "orphan works"
•    The clear realization that orphan works pose a problem the stifles creativity.
When an artist wants to use another artist's work to build on, she cannot do so if she doesn’t have explicit permission from the original rightsholder. Due to the 1976 revision of the copyright law, when US lawmakers granted copyright protection to any new work as soon as it became "fixed in any tangible medium of expression," it is safer to assume that any work after that time is under copyright protection. If a search does not reveal the said copyright holder then it is safer to exclude the copyrighted work from the artist's new work because a possible resurfacing of the rightsholder and the consequential copyright infringement penalties are too high (running up to $150,000).

The report provides the legal background for orphan works, mentioning the 1976 Copyright Act. Most importantly for my investigation, it refers to the Berne convention, which under Article 5(2) states that copyright protection shall not be subject to any formalities (formalities most typically appearing as registration or a deposit of the original work).

The report also provides a proposed solution to the orphan works problem. In this proposal, the artist is free to use a copyrighted work if the rightsholder remains unidentified after a “reasonably diligent search.” In case the rightsholder resurfaces and claims her rights, the good faith infringer is required to pay a mutually decided penalty. If the original and the derivative artist cannot agree on a price, then the court shall take up the issue. In any way, the cost shall be much lower than current copyright infringement penalties. This legislative scheme is intended to provide artists with the necessary confidence to build on original copyrighted works.

Lawrence Lessig Orphan Works Proposal

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is a movie/ presentation by lawyer Lawrence Lessig in response to the Orphan Works act of 2006. In it, Lessig traces the orphan works debate back to his case Eldred v. Ashcroft. After providing the legal background, and stating the orphan works problem, he goes on to disagree with the Orphan Works act of 2006. His argument is that the bill “goes too far, and not far enough:” that it goes too far in removing copyright protection from the owners, and not far enough by making it extremely difficult for users determine whether a work is orphaned or not. His own alternative is given in the end, in which he suggests a simpler scenario which corrects some of the failures of the proposed bill.

Lessig admits that there are benefits to the legislation. The two of them include (1) the realization that there is an orphan works problem, and (2) the recognition that copyright owners will have to be part of the solution.

The negative elements of the bill are grouped in 3 categories: who, when and by what are copyright owners affected. The 2006 act affects everyone, now. All the owners must always be identifiable. This is unfair to copyright owners, because after the 1976 act, they have not been required to register their work. Suddenly, they are told that they do, with the penalty of losing their rights. It is especially unfair to foreign copyright owners. What must both domestic and foreign rightsholders do to make sure they can be identified, after a “reasonably diligent search?” The bill does not propose an answer. The later is exactly what is going to affect rightsholders: the murky term of a “reasonably diligent search.” Although the bill includes a list of how to determine whether a search is reasonably diligent, the requirements are unclear. This “mush” will be a permanent cost to libraries, and a permanent uncertainty for users.

Lessig suggests an alternative, in which owners have an obligation to maintain their copyright in a way that makes it easy for people to identify and get access to them, after a specified term. Under this plan, the government should provide the protocol for the creation of searchable registries towards which rightsholders are going to turn when they need to be identified. Market forces should keep the cost for registering very low (as low as buying a domain name). This proposal does not extend to foreign copyright holders, because of the Berne convention.

This is an important source because of three reasons. (1) It provides a straight historical connection from Eldred vs. Ashcroft to 2007. (2) It disagrees with one of the solutions to the orphan works problem and shines light on the legislative weaknesses. (3) It provides an efficient counter-proposal. This proposal shows similarities and differences with the Google Book Search approach – elements which will be used in support of my argument in favor of a Google-ized orphan works solution.

Google Book Search and Orphan Works - PK

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is a blog response by Jef Pearlman in the PK blog. Jef is a distinguished attorney on the subject of Free Speech, the First Amendment and telecommunications. He has also a member of the California Bar and assists Public Knowledge as a staff attorney. The response includes a rejection of Google Book Search as a viable solution to the orphan works act. “While it’s a step in the right direction (and has the benefits described), it’s not a very big one, nor is it enough to obviate the need for Congress to step in.”

The main point in this blog post is that the Google Book Search would only work for books, and not for any other media. The effects of the Google settlement are divided in two parts. Firstly, it gives Google the opportunity to offer a large amounts to the public, both in searchable and in full form. This is a clear win for Google, and a clear win for the public as well. Secondly, the agreement calls for the creation of the Google Book Rights Registry. The BRR provides incentive, and the opportunity for authors to un-orphan their work.

The blog draws a parallel between the BRR and the existing registries for other media (ASCAP, BMI) and states that only the artists who have signed up are allowed to participate, leaving the rest out of the loop. The implication is that the BRR will not significantly alleviate the orphan work problem because even though users will be able to preview the copyrighted material of such works though Google, they will not be able to do anything more than just view it. In case the author has not signed up with the BRR, the work will be orphaned, and the user will not be able to identify the copyright owner. This is the essential orphan works problem. In this sense, the Google Book Search settlement only gains weight as an orphan works solution after a lot of authors have signed up.

Jef also draws attention to the fact that this is primarily an agreement between Google, the AAP, and the Authors Guild. As such, the Registry is limited to the authors who belong in those two groups, and the authors who chose to register individually. However, it does not provide any protection to the user of an orphaned work. If I use a book and the author resurfaces to claim her rights, I am treated just like a regular infringer. Most importantly, the Registry fails to address other media, as well as other digitization efforts other than Google. The argument, then, can be summarized as a calling for a greater governmental intervention to solve the problem, and a position against Registries, in general, which cannot represent some types of media (visual works, letters, personal recordings).

The problem, as offered here, is the limited scope of the Google Book Search agreement. Although it does limit the amount of orphan works, there is a huge amount still lurking in the literary purgatory. The source is important for my argument because these are the claims I need to refute to support my case.

Google Book Search and Orphan Works – blog entry

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This entry was written on ©ollecanea: collected perspectives on copyright by Georgia Harper, an intellectual property scholar. It is a largely supportive article about the Google Book Search settlement and its effects on orphan works. “I want this process to work. I think it has a much better chance of working than that piece of legislation that nearly passed earlier this fall.” While the author shows her strong optimism about the agreement, she also brings attention to elements of the Book Rights Registry.

(1)    Why does the Registry get to keep revenues from orphaned works, when such works are defined by their lack of owner? The underlying thought, that this blog unearths, is that publishers and authors see orphan works as belonging to the greater author community, but not the public. Justification for this is hard to find, since the public collected, preserved and maintained these works in libraries, through which they became available to Google. The fact that this is a private sector solution might be the cause for such an un-egalitarian approach to books.
(2)    The nature of the orphan works leaves them especially vulnerable to fraudulent claiming. The incentives produced by the BRR, would then, be counterproductive, and complicate the orphan works situation, instead of alleviating it. The author suggests the formation of an entire industry of independent competing registries. The more sources the user has, and the easier it is to trust your information. Until the time when the BRR can be cross-checked with another registry, the BRR data should not be treated as infallible.

The blog entry is an important source, because it raises two significant points. The underlying thought process behind this agreement, and the legitimacy of the BRR.

Eldred v. Ashcroft

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

Eric Eldred is a retired computer programmer who started building a library of public domain books by scanning them and making them available online (very similarly to Google). His case launched a constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA), in the following fields: (1) The Progress Clause: the ability to extend existing terms violates what the framers had in mind by “limited times.” (2) First Amendment: the extension of copyrights for existing works restricts speech without getting any speech in return.

In the 1998 CTEA, the congress increased the copyright term by 20 years for present and future work. It had been the eleventh time Congress had increased the copyright term in the past 40 years. The motivation behind it was political pressure by groups which owned valuable copyrights.

Eldred asked the question: how can you be promoting progress, if you extend the term for works already existing? How is it possible to follow the framers’ constitution, and their clear clause of copyright protection for a limited time, when copyright protection rights are perpetually extending into the future?

In the heart of the matter lie not the 2% of copyrighted work which retain their value until the end of their copyright term (e.g. Mickey Mouse), but the 98% of the works which become commercially unavailable, and later orphaned before the end of their term. Examples of such include old American films of the Laurel and Hardy era. Such works would actually benefit from a smaller copyright term because restoration work on the film can begin sooner.

Eldred was defeated in this case, and the CTEA secured. This case, however, offers a radically different approach to the orphan works problem to the ones proposed later in 2005, 2006 and 2008. The challenge with orphan works legislation is to organize the transition from copyright to the public domain for a large amount of material. Ideally, every work would enter the public domain after it would stop generating revenue for the copyright owner, and would be commercially unavailable. It is impossible, though, to monitor the entire spread of human creations and decide on a case by case method which works are ready to be transferred to the public domain and which ones are not. Whereas the more recent acts seek to solve the orphan works problem by curtailing the rights of disappeared authors and by creating databases that link works to rightsholders, this case proposed the faster entry of works into the public domain.

This solution is so simple that it almost makes every other bill seem ridiculous. Yet, the fact that the CTEA was upheld indicates the necessity for a filtering system which can distinguish between commercially successful works which need to be protected, and orphan works which should be placed in the public domain. This is an important source because it represents the roots of the orphan works movement, and provides a simple alternative to the Google Book Search, the 2005 Public Domain Enhancement Act, the Copyright Act of (2006) and the latter’s 2008 equivalents to the solution of the orphan works problem.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

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