A photographer friend of mine posted an article by Mark Simon concerning Orphan Works. Between that and the discussion brought up through an IGDA mailing list I belong to, I started looking into this a bit. I think a lot of people, developers and designers included, may get a little overwhelmed or fearful when this issue comes up. To avoid this, it’s important that you actually learn about the issues. Orphan Works are a touchy subject because artists want their works protected and creating a new law that enables people to use works that would ordinarily be protected is necessarily going to piss artists off. It’s worth noting that Orphan Works proponents have been trying to get this into the Copyright Act since the expansion of copyright protection in 1976. It hasn’t made it in yet. We are signatories to the Berne Convention, and as such doing anything that could seriously injure authors’ rights will raise some very concerned international eyebrows.
An Orphan Work is, simply stated, a work where the author cannot be found. Because there may still be rights attached to the work, people who want to use the work but who are unable to locate the owner of those rights are often afraid to use the work for fear of future liability. To address this issue, Congressional subcommittees have been formed to formulate a way to treat these works. The first bill that came before Congress was the Orphan Works Act of 2006. It failed. However, there is always a chance that it could come up again, so people like Mark Simon and the Illustrator’s Partnership of America are trying to bring attention to the issue.
The problem with the Orphan Works issue is particular to visual works like photographs and digital images. One major fear is that it would be possible for someone to claim that a work is an orphan work because some prior infringer took the image and cropped or removed anything that could identify the rights holder. As a result we have private companies who want to create registries where artists could register their work. One issue is the reliability of such registries. Another is the cost to the artists.
Mark Simon paints a very doom and gloom picture, which is understandable. He’s an artist. But sometimes misinformation and passionate speech does more harm than good. There are plenty who are already jumping on the bandwagon to discredit his article. However, Mark Simon made some very valid points. Under Best Practices, it is the individual industries that determines due diligence. What Marybeth Peters fails to point out is that making vague law requires that due diligence be determined in Court. This kind of law immediately puts artists at a disadvantage, especially when the remedy itself may be limited. Every case will have to be brought to court to determine whether the due diligence standard has been met—it makes the issue a question of fact as opposed to law, which is inherently problematic. An Orphan Works Act shifts the burden to the author as opposed to the user in the fair use equation, and that is highly discouraging to artists. In a fair use case, at least, the artist may still be entitled to significant statutory damages. Formulating an Orphan Works Act with a due diligence standard is also counter to copyright public policy—not all rights under copyright are equal, and therefore some artists will be harmed more than others under an Orphan Works Act.
As the IPA points out, relying on registries will also be problematic. There are plenty of pitfalls, slippery slopes and dangers in the proposed legislation. One potential fear is the chilling effect this will have on the free distribution of creative works. Currently the threat of statutory damages is sufficient to prevent users from commercially exploiting or distorting creative works where the attribution, for whatever reason, is absent. Removing from, placing a condition on or creating a loophole for that threat may encourage artists to employ DRM and other methods to prevent the free distribution of those works.
My personal belief is that the Copyright Office should put more time into setting reliable guidelines for fair use, where the uses considered for orphan works should be handled, as opposed to creating new law. Most of the uses speculated in Marybeth Peters’ testimony are matters of fair use– the reason people are afraid to make fair use of copyrighted works is the fear of having a lawsuit brought against them. This is obviously a serious issue. Museums and individuals who own the physical copies of historical works of art should be able to preserve and display those works to enrich our culture. After all, if the work truly is an Orphan Work, who is going to bring the cause of action against the user? Actual orphan works don’t present a threat to users—only the threat that they are not truly "orphan" can create the prohibitive fear. It is the commercial use of works that have owners who want to protect their interests that create a threat to the users of "orphan works." Those copyright owners have a right to protect their interests. Shifting the burden of proof onto the author and limiting the remedy to "reasonable compensation" may seriously tie the hands of valid rights holders.
An alternative is to avoid unduly burdening either party by clarifying the law of fair use.
It’s important to educate yourself and handle things in an intelligent, clear-minded manner when you take up any cause. Mark Simon failed to do so, and while he definitely raised awareness on the issue, passionate prose is often dismissed.
A couple of notes:
1. No Orphan Works Act has been presented to Congress yet in this session. A great resource is govtrack. Keep an eye on the legislation if it’s of issue that is important to you.
2. There are many sides to this issue. On the one hand, museums and valid users of copyrighted works feel that their own hands are tied when it comes to fulfilling their community duties. Artists, however, feel that their rights are going to be seriously diminished if this Act passes. It’s important to maintain a realistic balance when examining this issue. A compromise should certainly be reached, but a new law probably isn’t necessary when current law can be adapted to handle this issue.