May 21, 2008 | By Hugh D'Andrade

Orphan Works Update: Is the Legislation Fair to Copyright Holders?

As we pointed out in our deeplink and podcast on the issue, the Orphan Works legislation currently before Congress is stirring up all sorts of passions (and plenty of FUD). The debate continues this week-- with new contributions from two stalwart allies in the fight to reform copyright law.

Free Culture champion (and former EFF-board member) Larry Lessig has penned an op-ed for the New York Times opposing the bill. (log-in may be required) While he supports the principles behind the bill, he says it will create undue burden on copyright holders:

The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a “diligent effort” is not going to be cheap. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.

Instead, Lessig proposes a change long advocated by copyright reformers -- the reduction of the term of automatic copyright to 14 years, with an option to cheaply and easily renew the copyright after that time. A worthy goal -- but not likely to be achieved anytime soon, if ever, given the powerful interests that would oppose it.

Lessig's friend and comrade in the Free Culture wars Gigi Sohn at Public Knowledge has written a detailed riposte addressing each of Lessig's points:

First, the diligent effort framework for searches has been endorsed by all the major library and museum groups, as well as by smaller user groups like independent and documentary filmmakers. Contrary to what Larry believes, small and nonprofit institutional users do not want the government (in the guise of the Copyright Office) to define with specificity what a diligent effort is, because no two searches are alike.

. . .

[N]othing in the legislation is unfair to copyright holders. The purpose of the legislation is to match users with copyright holders and get the latter paid. If a copyright holder reappears after a user has done a diligent search, then the copyright holder is entitled to reasonable compensation. This is compensation that the copyright holder would likely never have obtained without orphan works relief, because the user would not have risked paying the huge damages provided by copyright law. Also, to the extent that photographers and other visual artists may be disadvantaged because the current text-based copyright registry system makes it difficult to find the proper owner of their works, the bills provide the exact relief Larry desires – a delay to the effective date of the law pending the development of a series of visual registries that will make searching for the owners of these works simple.

There is plenty of room for reasonable people to agree on these important questions. EFF strongly supports the Orphan Works legislation, while suggesting some changes such as requiring that any database of registered works be free to artists and copyright holders. We encourage people to read up on the issue and make up their own minds. If Orphan Works reform is an issue you believe in, contact your Congressperson now to support the legislation.

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