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.

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.