Orphan Works find home at AU

On February 24, I attended "Orphan Works: New Prospects for a Solution" at American University's Washington College of Law, sponsored by the Intellectual Property Law Clinic and introduced by Peter Jaszi. A webcast is available on the law school's site. The first panel considered what the orphan works problem is (if there is one).

Prue Adler, Association of American Libraries: She offered the library community perspective, which is similar to that of archives and museums. Libraries see solving the orphan works problem as offering huge benefits to scholarship from greater public accessibility. There are many rich special collections nationwide, and libraries are trying to digitize them, but massive numbers of the documents are orphan works. Many of these are on unstable, deteriorating media such as acidic paper. Moreover, users demand electronic formats – print and other media no longer satisfy.

Three examples from one institution, Cornell. First, Cornell has a core collection of agricultural texts from the mid-19th to mid-20th century, covering forestry, nutrition, etc. It took $50,000 in staff time solely to deal with copyright – contacting authors' children and publishing houses and dealing with international issues. For 14% of the works, Cornell was denied permission; the librarians couldn't determine ownership for 58% (and these are people who know how to research!). The killer – how many texts did that $50,000 cover? Three hundred and forty-three (343) mongraphs.

Second, Cornell's Center for Labor/Management Relations has 350,000 unpublished photographs. One percent (1%) have indications of who took them. Without orphan works, there is no way this collection will be digitized.

Third, the Rare Book and Manuscript collection includes a manuscript from a Japanese-American relocation camp from WWII. The author gave permission to reproduce it once, but has since disappeared, which means a wait of 120 years from creation before it can be used again.

Access and preservation are linked – each time someone handles many of these materials, they deteriorate. Orphan works protections are necessary, especially given the uniquely risk-adverse counsel who operate on-campus. Any doubt about whether the use requires permission leads to a veto.

Alex Curtis, Public Knowledge: We know that from 1923-1942, 3 million copyrights were registered, some of which were renewed; 2% were being commercially exploited in 1998. That 98% represents a great opportunity – including for commercial exploitation – except for the problem that the costs of seeking permission overwhelm the benefits to be had, especially since even those who do the work often can't find the owner.

The Copyright Office's proposal is pretty close to PK's goals of (1) encouraging registration, (2) matching works with lost owners, and (3) minimizing the risks and costs to users. PK thinks legislation needs to provide a high degree of certainty, since the search alone will be expensive. PK doesn't like the distinction between commercial and noncommercial endeavors for the absolute bar on damages, and also thinks the reasonable compensation requirement is too uncertain. The last decade saw lots of bad copyright policy – this is a big chance to go the other way.

Kathleen Franz, AU history department: Franz is a cultural historian who uses visual and sound sources. She's also a public historian, which means she works on all the things historians do outside the classroom, including museums and digital history. Her 20th century colleagues are often faced with questions of what they can use. Permissions take time and corporate archives charge a lot. Working in an early period, she often relies on fair use, but other historians don't have that choice.

She offered an example from museum life: doing a show with 500 to 1000 postcards, you could take up all your staff time looking for permissions. She'd like to see some legal changes to help out academic and public historians.

Mitch Glazer, RIAA: Here I will interrupt to say that Mr. Glazer was personable, reasonable, and very smart – but apparently not smart enough to avoid the heat for inserting a teeny, tiny change in the definition of works for hire back in 1999 (though Courtney Love spelled his name wrong).

Glazer was present to talk about commercial exploitation of orphan works. RIAA companies are both owners (sound recordings) and users (musical works). What we have here is a need to balance a reasonable degree of business certainty with fairness to creators. As with most copyright legislation, there are interests to respect on both sides. The RIAA always believes in licensing, but if you can't find the owner but do have the work, how do you make it available for public use?

The Copyright Office did a pretty good balancing job. Now we need to find the right examples to define a reasonably diligent search: there should be no automatic entitlement just by searching Copyright Office records, nor a zillion-step requirement. We need examples so Congress can give guidance without a regulatory scheme (I took this to mean that he wanted legislative history, not rulemaking).

Glazer made what I thought was the most interesting theoretical (and practical!) point of the session: the proposed attribution element cries out for balance as well. If you're 50% certain of a work's authorship, giving attribution may be inappropriate – you may falsely accuse the supposed author.

We also need guidance on reasonable compensation. He thinks the sunset provision proposed is appropriate – this should be a pilot program so we can evaluate it, though we need to figure out what happens to works used before the sunset. (Later on, one commenter said that he'd be happy to have an orphan works sunset if the copyright industries would trade us a section 1201 anticircumvention sunset.)

People not usually on the same sides agree: there's room for a legislative solution. Commercializing orphan works benefits the public by allowing access to material we wouldn't otherwise have heard.

Eugene Mopsik, American Society of Media Photographers: This proposal is a disaster of biblical proportions. (Good contrast to Glazer's conclusion!) Mopsik's organization, which mainly represents publication photographers, has come together with other artists' and photographers' organizations to object.

The basic problem is that, as a matter of trade practice, the vast majority of ASMP members' works are routinely reproduced without credit. They've done everything possible under the law, including registering, to protect themselves. They're not missing, not hiding, not making themselves hard to find. (And here's what nobody ever said to him directly: they're not making themselves hard to find; they're nonetheless hard – indeed, impossible -- to find. So it's not like the current rule is helping.) The orphan works proposal resurrects a notice requirement where context makes notice impossible.

It's been suggested that the Copyright Office create a searchable image registry. In the report, the Office said that was beyond the scope of its mandate and an administrative nightmare besides, but meanwhile it would be great if the photographers did that themselves. Mopsik said that, since they're already overwhelmed and underpaid, that's not going to happen.

The proposal encouarages theft by libraries at the expense of photographers. He understands the need for access; getting permission takes time and costs money, sure. He'd like free stuff too, say at the car dealership, but doesn't see why creators are supposed to pay.

At most, any orphan works solution should only allow noncommercial use by nonprofits. Congress should create a copyright small claims court so it's worth suing over ordinary infringements. Attorneys' fees should also be allowed where the user refuses to pay or is otherwise abusive.

I was the last speaker on the panel; I'll post about what I said in the next post. (It'll be shorter than this!)