Orphan Works, Panel 2, part 1

Panel 2, evaluating the Copyright Office proposal:
Matt Skelton & Rob Kasunic, Copyright Office: There was a huge response to the Notice of Inquiry, about 850 comments total. Roundtables and informal meetings were also important to the process. The Office made a real effort to deal with the situation holistically – it could have gone to complex sectoral limitations, but instead wanted an allover scheme.

The attribution requirement, in some situations, merely calls for an indication that the owner is unknown and that the material is not original to the author of the new work.

The Office was surprised that users didn't want specific regulatory guidance on what reasonable search was – they wanted to establish best practices through negotiation. Also surprised that people who are comfortable with "reasonable search" are uncomfortable with "reasonable compensation." (I can't see why: same adjective, very different potential consequences.)

Looking at the derivative works language in the proposal, they may not have fully captured the idea, which was not necessarily to distinguish between derivative works and nonderivative works, but to take into account the extent to which a user relied on a particular work in creating a new work. (As I understood it, the concern is that a book reprinting an orphan photo probably isn't a derivative work of the photo under existing caselaw, but the selection and printing of that particular photo still creates enough of a reliance interest that injunction should be unavailable to a newly appeared owner. It seems to me, however, that "the extent of reliance" is an equally awkward way to address the problem; most especially, it would be a bad idea to have a court deciding that, since another photo would adequately illustrate the same point, the user's reliance isn't sufficient to avoid injunctive relief.)

The Office is looking for other ways to express that concept. Where there's no reliance on the underlying work, its use could be enjoined, though the court should take into account whether there was some reliance. (Thus, the Office may not agree with my parenthetical concern – if the photo could be replaced in later editions of a book, for example, maybe that should be the result. It seems to me that this would have the greatest consequences for online exhibits and the like, since a resurfacing copyright owner could often argue that the changeability of the online form means that reliance interests are minimal.)

Jonathan Band, Library Copyright Alliance: The sunset provision is a horrible idea (he's the one who suggested trading for a Title I DMCA sunset). Given the hard work everyone's done defining the problem, a sunset makes no sense.

A damage cap as opposed to reasonable compensation would be better for certainty. However, the LCA understands political reality and is willing to consider reasonable compensation, as long as there's additional certainty about what reasonable means. The Report has pretty good definitions, which should be incorporated into statutory language, not legislative history.

Other, more technical issues are resolveable. What's a noncommercial use – a library gift shop? (Libraries have gift shops?) A university coursepack?

Attribution of photos is a very real problem. Maybe we need to lean on publishers to do that in the future. A statutory requirement of attribution for photographs is not a good idea because it gets into moral rights territory, but it would be good to mitigate the problem on a going forward basis.

Brad Holland, Illustrators' Partnership: Holland's organization was joined by architectural, medical, scientific and other illustrators, along with cartoonists and organizations that represent artists' estates in opposing orphan works protection. At least, illustrations and photographs should be treated specially because authors produce a limited number of books (tell that to Isaac Asimov!) and can keep track, whereas illustrators and photographers have thousands or tens of thousands of works to manage.

As an aesthetic matter, it hurts a photograph to have credit attached. Imagine the Sistine Chapel with Michelangelo's name and "all rights reserved" across the painting.

Nine times in the Report, it says that most works have no economic value soon after publication – this is a basic premise.

That's false: anecdotally, artists get more value after 20 years because of their reputations. (My comment: the plural of anecdote is not data.) Moreover, before 1976, an artist's drawing for the New Yorker was unlikely to be reused; that was perceived as unethical. Now secondary rights are contentious and valuable. Bill Gates is buying up photos and illustrations by the hundreds of millions – smart businessmen don't spend so much money on works with no commercial value. (My comment: we're back to Google again – aggregation's value is greater than the sum of the parts.)

Holland's group objects to two loopholes in particular. First, the Report says that information on the face of a work of art is highly relevant to whether a user's search is adequate. Holland told the story of an artist, Cutler, who always used © as the C in his name on his art. A stockhouse took the work, breaching his contract and infringing his copyright, but he was unable to go to court against a giant corporation. Holland saw his work reproduced in a Singapore newspaper which had cut the C off of his name. The information was false – the most diligent search in the world wouldn't have found Utler, and this isn't Cutler's fault. (As someone in the comments noted, none of this is an orphan works problem.)

Second, the proposed remedies are too limited. The Report acknowledges that illustrators can't go to court over infringements, but the requirement that reasonable search parameters be developed on a case-by-case basis will mean that no ground rules will ever develop, since no one will sue to develop them.

There are also problems of retroactivity: artists have done work in good faith with no information on the face of the work. (I began to get the sense that Holland was treating "face" somewhat more literally than I would have. Also, do artists expect that, because they can't be found, no reuse will be made of their works? By definition, they can't really expect economic benefit. So what orphan works protection denies them is some certainty that their work will not be disseminated – a type of moral right.)

Holland's group concedes that legitimate problems exist, such as family portraits taken by professional photographers. But in every small town, there's someone who doesn't know that copyright law exists or is willing to break the law – it's like jaywalking, a law to be winked at. (Wow. So much for moral rights.) The Netherlands allows reproduction of family photos by or on behalf of the person(s?) portrayed or the heirs. We should adopt the same rule instead of an omnibus bill.

In conclusion, the Report offers a blueprint for a license to infringe.

Next: more panelists, and questions.