May 16, 2008 | By corynne mcsherry

Release the Orphan Works!

Orphan works legislation has returned to Congress, and the controversy surrounding the bill is just as heated as it was the last time around, in 2006. While a broad coalition of libraries, museums, independent filmmakers, public interest groups, and commercial arts organizations such as the RIAA and the MPAA back the bill, several prominent visual artists’ organizations have been rallying their members in opposition. (For a discussion about orphan works, listen to the latest episode of EFF's Line Noise Podcast.)

EFF strongly supports the legislation. Orphan works reform will dramatically expand the cultural commons, easing access to and use of a wealth of historical works that are presently locked away from public view. It should help create a system in which artists get paid, the public sees more works, and unlawful infringement continues to be punished. But the current legislation could be better, which is why we urge Congress to consider some small but significant changes that should alleviate the concerns of the visual arts community.

For those who haven’t been following this battle, here’s a quick primer on the problem that this legislation is trying to fix. Orphan works are those whose owner cannot be located. Others who would like to use and share these works may hesitate to do so out of fear that they could later be found liable for copyright infringement because they didn’t get permission. Consider the following examples:

  • A library has a vast archive of photos and music from the Depression Era. It would like to put this archive online, so people who aren’t able to visit the library can use the works for pleasure, research, making art, etc. But the library is unable to locate owners for twenty percent of the works in the archive and is afraid that if it displays the works online without permission, it would be sued for copyright infringement if those owners emerged later.
  • A documentarian stumbles upon an album full of photographs from the 1960s and is keenly inspired -- it's a treasure trove of local history, with photos of politicians, celebrities, and events. He asks if the thrift store can identify the person who brought the photo album in, but they simply don't remember. The documentarian wants to use some of the photos in a film, but he's aware that use of the images could infringe someone’s copyright. By using the photos without permission, he could be opening himself up to thousands of dollars in damages, per photo, if the original photographer (or his or her estate, or any legitimate owner of the copyright) steps forward and sues him for copyright infringement.

The Orphan Works legislation would help resolve those fears and, in the process, encourage the display and re-use of these “lost” works. Under the proposed law, individuals who would like to use an orphan work must put diligent effort into searching for the owner of the copyright in the work, based in part on best practices to be outlined by the Registrar of Copyright. If that search comes up empty, they can use that work. And, if at some future time the copyright owner comes forward to demand payment, the legislation requires the second author to negotiate with that owner in good faith to determine reasonable compensation for the use, and promptly pay that compensation.

And if the second author doesn't follow the new rules under the law and simply uses the work without making a diligent search? The copyright owner can sue them under the current rules and potentially obtain statutory damages of up to $150,000 per work -- just as they can now.

Congress also plans to certify searchable databases for visual works like photographs, graphic arts, and textile designs that will collect information about works and contact information for the related copyright owners. There are not “formalities” associated with these databases. No artist will be required to “register” with the databases, and failure to register will not result in it being considered “orphaned.”

The legislation prioritizes the search for the copyright owner. One of the proposed law's strengths is that terms like “diligent effort” and “reasonable compensation” would allow the courts, the Copyright Office, and owner and user communities to adapt the requirements over time and address the needs and concerns of a variety of artists and rights holders. By providing guidelines for what constitutes a “qualifying search,” the legislation would have a positive effect on artists by helping to provide a legal standard that can be used to hold bad faith infringers accountable.

While the legislation proposes changes that are sorely needed, some small but significant modifications would make the bill even more effective at enriching our culture. First, the copyright databases must be free for everyone to use. No one should be penalized for doing the right thing -- namely copyright owners for making themselves easier to contact about works and artists seeking copyright owners before making use of orphan works. Second, the notice of use requirement included in the House version of the legislation should be jettisoned—it will add a layer of bureaucracy to the process, potentially invite “copyright trolls” and add an additional (possible prohibitive) expense to second users.

Ultimately, the Orphan Works legislation represents an extraordinary good faith effort on the part of the Copyright Office, technology policy groups, rights holders and our elected representatives. While some changes are in order, this legislation gives Congress a crucial opportunity to revise the copyright law enrich the community at large and providing avenues of revenue and inspiration to generations of artists to come. Here’s hoping our elected officials take advantage of it!

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