Updated: The Return of Orphan Works Part 2: A Solution in Search of a Problem

Has anyone ever said to you, “What I really need is a good way to use other people’s works without paying them?”  Or, “What would really save the [music/photography/movie/news] business is a good orphan works law.”

I thought not.

So how in the world did this orphan works thing get started?

The Origins of the Orphan Works Myth

“Orphan works” are by most of the common definitions works of copyright for which the owner cannot be found by someone wishing to use the work after a “reasonably diligent search”.  This use may be commercial or noncommercial, and the “someone” can be you or it can be Google.

Remember that–it can be Google.  (Google’s then-attorney, Berkman Center affiliate, Lessig acolyte, and all round digital sophisticate Alexander MacGilivrey made that clear in his testimony at the Copyright Office orphan works roundtable: “I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”)

As you can see already, there is a moral hazard present if you allow the person who would like to use the work to make the determination of how hard they have looked for the owner and whether the owner cannot be found.  You’ll notice that the concept of “search” figures prominently in any discussion of orphan works.  (Guess who thinks that they do search better than anyone else?)

But what you should take away from this is a large point–orphan works is one of a series of attacks on copyright designed to take away the rights of artists to control their own works.  Not surprisingly, the result of the orphan works legislation is to shift the balance in favor of the big tech companies that want to exploit these works in the millions.  These are the companies–we now see being mostly Google–that have the seemingly endless litigation and lobbying budgets to intimidate artists into giving up and accepting that ennui of learned helplessness we recognize as the most common state of the creative community in the Age of Theft.

The concept probably started with–wait for it–Lawrence Lessig–in his 2003 New York Times op ed “Protecting Mickey Mouse at Art’s Expense“.  (This from someone with little to do with either Mickey Mouse, art or protecting either.)  This piece was published in Lessig’s (still evolving) fit of pique at his humiliating loss in the Eldred case before the U.S. Supreme Court arguing against the Copyright Term Extension Act (which he recently described to some high school students as a “stupid” decision).  And that op-ed is a good example of the oppressive regime of registration and formalities that Lessig and Google (benefactor of many Lessig causes) wish to impose on artists, especially American artists:

Patent holders have to pay a fee every few years to maintain their patents. The same principle could be applied to copyright. Imagine requiring copyright holders to pay a tax 50 years after a work was published. The tax should be very small, maybe $50 a work. And when the tax was paid, the government would record that fact, including the name of the copyright holder paying the tax. That way artists and others who want to use a work would continue to have an easy way to identify the current copyright owner. But if a copyright owner fails to pay the tax for three years in a row, then the work will enter the public domain. Anyone would then be free to build upon and cultivate that part of our culture as he sees fit.

It is important to know that the world has, for a very long time, agreed by treaty that governments could not impose “formalities” on copyrights, such as registration.  (The United States has not completely abandoned the registration formality, but it is much more limited since the US signed up to the Berne Convention in 1989, probably the most important international copyright treaty.)

Photographers are a good example of why formalities don’t work as a condition of enjoying copyright.  If you have ever been to a sporting event or a modeling shoot, you will know that photographers will fire off many, many photographs, sometimes in a matter of minutes.  Each of those photographs is a separate copyright.  Requiring the photographer to register each copyright would not only be extraordinarily burdensome to the creator, it would also be burdensome on the government agency required to maintain these works.  (The US Register of Copyrights was very concerned about the ability of the Copyright Office to handle these works and the cost of registration being significantly under the long-term cost to taxpayers of maintaining these registrations.)

Lessig starts with what he and his acolytes know best–patents.  Those would be the rights most of them never get to own themselves but are assigned to their employers under an employee inventions agreement signed on their first day of work.  Having a patent issued is a laborious and secretive process, an expensive process that bears little resemblance to the creation of a work of copyright, one of the engines of free expression.

Comparing copyrights to patents is so inapt it would be silly if it were not for the fact that so many bought into that one giant leap.  MTP readers will recognize the rhetorical leap when they see it, but others do not.

Lessig then suggests that creators pay a $50 “tax”, also known as a registration fee, to preserve their rights “50 years after a work is published.”  Interestingly, a few years later Lessig remembers his op-ed as proposing a $1 registration fee–which it clearly did not (at 11:38).   The unacknowledged shift from $50 to $1 no doubt was the result of complaints from artists, but it definitely does not take into account the complaints from the Copyright Office.

So Lessig teaches that if copyright were patent, which it is not, then artists could be required to register, which they cannot be required to do by treaty, and pay either $50 in 2003, which artists could not afford to do, or $1 in 2007, which the Copyright Office could not afford to do, and otherwise–and here’s the punchline–the works pass into the public domain “long after they have been forgotten by the commercial world”.  In fact, Representative Zoe Lofgren introduced a bill called the “Public Domain Enhancement Act” (HR 2408 in the 1st Session of the 109th Congress).  You remember Rep. Lofgren, right?  She is Google’s Congressperson and most recently distinguished herself by calling out the Register of Copyrights for meeting with copyright owners, shocking though that thought might be.  Yes, in a scene reminiscent of a certain late Senator from Wisconsin, Ms. Lofgren shamelessly demanded to know the names of copyright owners participating in meetings with the Register.

Yes, if 6 were 9, then things would be different.

Lessig’s op-ed may not have been the first time this concept got a name, but it is probably as good a starting place as any.

So you can see that the point of orphan works is to create a category of works that automatically pass into the public domain before the term of copyright would otherwise expire–which was the purpose of Lessig’s case in Eldred.  Doing indirectly through a trumped up “problem” that which he failed to do directly before the Supreme Court.

How Orphan Works Shortens the Copyright Term Further

When you understand orphan works as another mechanism to define away the copyright term by imposing financial roadblocks or burdensome formalities, the underlying purpose of these proposed statutes become clear.  When you understand that it is likely that international treaties prohibit these burdens on artists and other copyright owners the true sweep of the “problem” also becomes clear.

An argument can be made that what opponents of copyright–especially Google–are doing is trying to pick away at major treaty partners in an effort to cause the collapse of the entire treaty system.  While this may have seemed like paranoid rambling before the last year or two, Google’s actions starting at least with the Google Books case should bring its ultimate goals into sharp focus.  Google will trade on its reputation as a technology company, and particularly a search company, to try to control the “reasonably diligent search” component of orphan works as the black box from which only works held by the richest copyright owners–particularly US-based copyright owners–can emerge.

This is a lot of agina to go through because a petulant Lawrence Lessig was embarrassed by an easily predictable loss in the Supreme Court.

Unlike Lessig’s “Free Mickey” op-ed, the concept of “orphan works” as expressed in the Copyright Office 2006 report and subsequent legislation sweeps up any work that has not achieved commercial success as a practical matter.  If the copyright owner cannot be found after a “reasonably diligent search”, then the copyright owner loses.  This could be a work created today, yesterday, last year or 50 years ago.  Even Lessig criticized the abrupt effects of the orphan works proposals as too burdensome on users, but was happy to impose a registration burden on at least American copyright owner and the Copyright Office.

And of course, while he thought the orphan works legislation was unfair, what he thought would be fair was to cut the copyright term to 14 years or 5 years for pre-1978 works.  5 years because if the work is that old, then the copyright would not be commercially relevant any longer.  This is another example of his rhetoric–he can say he opposes laws that are unfair to copyright owners.  What he leaves out (and what you wouldn’t know unless you read up on him) is that his solution to the laws is to cut the copyright term to either 14 or 5 years because that’s fair.

Lessig, by definition, ignores the 35 year recapture right of authors that is now starting to come online.  Lessig also would have only US works be subject to this “simple and efficient registry” run by private industry, such as the highly efficient domain name system.  (Meaning ICANN–whose board chairman in 2007 when Lessig had this idea was Vint Cerf who was on his way to his current employment at Google as the company’s “Chief Internet Evangelist” and Andrew McLaughlin pen pal.)

Once again, Lessig glosses over the complexity of information required, cover recordings vs. original recordings.  This is obviously a man who has never tried to build such a registry for sound recordings.  I have.  He’s full of it.  But then he wants to screw just the Americans, so he thinks that would be consistent with treaty obligations.  This did not work out so well with Google Books.

Lessig also wanted the United States to encourage British copyright owners and then other treaty partners to adopt the same rules applicable to Americans, and kind of roll out the screwing on a country by country basis.  So we should not be surprised that Google is currently applying a triple whip pressure to the current copyright landgrab in the UK Parliament.

The Solution that Became the Problem

The Google lobbyists and surrogates have been effective in some quarters in creating a narrative around some nonexistant vast treasure trove of works for which no owner can be found and which need to be “liberated” so that society can build upon them without compensating the creator–for example. manipulating them digitally so the original owner would have a hard time recognizing their own work if they happened to stumble upon it.

Both the Copyright Office proposal and Lessig’s absurd 14/5 year copyright term ignore the author’s right to recapture their works after 35 years in the United States, one of the few recent changes to copyright law that is actually working to the artist’s advantage.

So the solution in search of a problem has itself become a problem which is ever more troubling in a world where Members of Congress and Parliament seem more inclined to listen to an Internet mob (which must surely be composed in part of sock puppets) than to living, breathing artists.  So far the artists have won.

And we can’t have that, now can we?

Google’s UK Landgrab

In case you missed it, Google did it the old fashioned way–get a trumped up study to justify doing what you wanted to do anyway, preferably with taxpayer dollars and even more preferably conducted by the government.  Google has managed to convince the UK government–partly through agency capture and partly through the relationship between Rachel Marjorie Joan Whetstone Google’s global head of communications and public policy and her husband Steve Hilton, both close friends and advisors to current UK Prime Minister David Cameron.   (Hilton is credited with such policy ideas as scrapping maternity leave for Britons.)   Somehow,  Cameron was persuaded to conduct and pay for the “Hargreaves Report” also known popularly in the UK press as the “Google Report.”  We have written about the Google Report at some length in an attempt to keep Americans apprised of the risk of letting this government-capture continue unchallenged.

Now the chickens are coming home to roost and they are starting with “orphan works”–which have now graduated to the overly   dramatic “hostage works” in some circles such as the ORG.  According to The Register:

Why the rush?

Last week the government proposed a collectivisation programme to sweep away individual copyrights across any class of work, to allow “broad commercial use” of those works.

Such measures are illegal under the Berne Convention, legal experts tell us, and may result in costly litigation lasting years. The phrase “orphan work” can refer to any copyright artifact where the ownership information is missing, which in practice, means every photograph or image on the internet.

So Britain’s copyright radicals at the Intellectual Property Office – formerly known the Patent Office but reborn as a hotbed of ideological radicalism in recent years – appear to be in a desperate hurry. Why would this be?

Well, a draft European Directive on orphan works is in the pipeline. While this has been fiercely criticised by creators’ rights groups, it offers the individual creator much more protection than the scheme favoured by the UK.

For example, the UK would allow broad commercial use of orphans – the European Commission specifically excludes it. Crucially, however, the European legislation would leave any member state’s existing collective licensing programme intact. This would appear to be a very strong motive for the IPO to ram through what it can, while it can.

Legal experts tell is that even if the UK’s go-it-alone collective licensing becomes law, it would have to comply with European directives, and the government’s doesn’t.

Who is going to benefit from this?

Another reason somebody may want to rush through legislation now is because it tilts the playing field towards large content users and processors – hello, Google – and then locks in the bias through legislation.

Remember Google’s testimony at the Copyright Office orphan works roundtable?

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

It’s not like these people don’t tell you their plans, but artists consistently underestimate the global nature of the attack and the fact that should be clear as day that Google and its surrogates intend to crush the global copyright system and destroy artists.  This all will have a familiar ring to those who watched US government contractor Google marshal members of the National Security Agency to support Google’s position against rogue sites legislation.

And when Google starts using all those same government levers to steal your privacy, don’t say you weren’t warned.

See The UK Landgrab

See Part 1: The Return of Orphan Works: A Review of the 2008 Shawn Bentley Orphan Works Act