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Orphan Works

March 26th, 2011 · 23 Comments

The ruling rejecting the Google Books settlement suggests, plausibly enough, that any general solution to the problem of orphan works is more properly the task of Congress than any kind of private agreement. I’ll admit to being a bit puzzled about why this hasn’t already happened. I take it for granted that our current lunatic copyright policy can be adequately explained by the fact that concentrated incumbent entities—RIAA and MPAA—are in a better position than dispersed consumers and amateur creators to lobby for legislation reflecting their (perceived) interests. But it seems like everyone ought to have an interest in resolving the orphan works problem. Content owned by incumbent content firms—and especially content currently generating revenue—is by definition not “orphan works.” Producers affiliated with those firms would also benefit from the presumption that they may make use of works whose owners cannot be found. And in the cases where there actually is a current living rights holder, they may well become aware of a highly successful adaptation of their work (and thus enjoy the benefit of royalties) that would simply not exist under the status quo because good-faith efforts to locate them failed. Who’s the rational veto player here?

UPDATE: Some interesting theories advanced in the comments here and over at Megan McArdle’s blog:

  • Opposition is grounded on symbolic or “slippery slope” grounds: Industry wants to resist anything that could be viewed as a reversal of the persistent march toward ever greater copyright protection, and in particular, anything that would remind people that copyright is in many ways not like ordinary physical property, and exists primarily to maximize the stock of creative works available to the public, not simply to give authors maximal control as an end in itself.

  • Some authors are more concerned with control than revenue: They simply do not want their works to be used without their express permission, whether or not they are currently getting any economic benefit from these works, and don’t want to be burdened with taking affirmative steps to “opt out.”
  • There are particular difficulties with certain types of works, such as photographs, for which it’s more likely to be the case that the work is still enjoying an active commercial life, but someone in possession of a single copy is not able to easily locate the rights holder. (With books and films, of course, you typically at least have a title and author to search on.) Creators of these types of works fear that “orphan works” will become a loophole for infringers to avoid liability.

  • Rights holders would prefer not to have their works face competition from more freely available orphan works, the stock of which is enormous. Again, this may be of particular concern with respect to things like stock photographs.

With the possible exception of the third item—which seems like a reason to devise some ad hoc solution for types of works where identification poses special problems—these don’t strike me as particularly compelling reasons to keep huge quantities of 20th century culture locked up, but your mileage may vary.

Tags: Markets · Tech and Tech Policy



23 responses so far ↓

  • 1 Luis // Mar 26, 2011 at 4:54 pm

    Having seen a variety of lawyers for the incumbents speak at conferences over the years, there appear to be a palpable fear from that camp that (1) this could give people an excuse to use old-but-not-orphaned works, which would then be hard to undo and (2) that any “liberalizing” of copyright would start us down a slippery slope to other reforms.

    It’s a lot like fair use reform- it’s obviously in everyone’s interest, but the copyright industry likes the one-way ratchet that always points towards tighter and tighter control, and so anything that goes against that is to be fought, even if fighting it makes no sense.

  • 2 leviramsey // Mar 26, 2011 at 7:21 pm

    I’ve long thought that instead of a simple fixed copyright term, it should be an implied short term (10 or 15 years, maybe?) and then allow unlimited one-year renewals but with the fee for renewal escalating from year to year so that cases like Mickey Mouse that still have rather large commercial value decades after their creation remain under copyright but orphan works and those whose owners see little commercial value go into the public domain rather quickly.

    An example renewal fee formula might be $100*n^2, where n is the number of the renewal so that:

    16th year of copyright: $100
    17th year: $400
    18th year: $900
    19th year: $1600
    20th year: $2500
    21st: $3600
    22nd: $4900
    23rd: $6400
    24th: $8100
    25th: $10,000
    30th: $22,500
    40th: $62,500
    50th: $122,500
    60th: $202,500
    70th: $302,500
    80th: $422,500
    115th: $1m

    I suspect that very few works from the early 1970s are generating $62,500 in sales minus maintenance/duplication/transmission costs per year, so even fairly big hits would be in the public domain within a few decades of creation.

  • 3 anns // Mar 26, 2011 at 9:30 pm

    my understanding is that, due to repeated mergers and buyouts in publishing, it may be a realistic fear on the part of publishers that they don’t in fact know what they own. that is, many orphan works may be owned by publishers that have effectively lost the institutional awareness that they own them.

    rather than make money and serve consumers by detangling their own (already digitized for free!) archives, instead….

  • 4 Tim Lee // Mar 26, 2011 at 11:08 pm

    In addition to what Luis said, it’s also hard to define exactly what counts as an orphan work. Generally orphan work reform proposals involve mandating that people do a certain amount of searching for the owner before they can use an orphan work, but there’s a lot of disagreement about what the legal standard should be what the consequences ought to be for failing to conduct a sufficiently rigorous one. Once you give people permission to use some orphan works, you get a boundary-enforcement problem where someone–presumably the copyright holder–has to expend extra resources monitoring people who use orphan works to make sure it’s limited to orphans.

    This is a particularly serious problem for photographs and other works whose authorship is often difficult to ascertain. Photographers are afraid that an orphan works defense would effectively deprive them of their rights to old photographs since one can almost always plausibly claim to be unaware of the author of a particular photograph.

    I think every work older than 14 years should be in the public domain anyway so I can’t say I have any sympathy for these arguments, but I can see how some organized copyright lobbies could see these proposals as not in their interest. From this perspective the GBS settlement was an ideal vehicle for “solving” the orphan works problem because it allowed only one institution to collect the orphan works and the profits from this were effectively split between Google and the publishing industry. That’s very different from a general orphan works reform where the benefits would flow to a much broader class of publishers and consumers.

  • 5 sam // Mar 27, 2011 at 6:44 am

    Speaking of copyright:

    Craig Venter’s Genetic Typo:

    In May 2010, geneticist J. Craig Venter and his team made news by creating the first “synthetic life form,” replacing the genetic code in a bacterium with DNA they’d composed on a computer. . .

    In order to distinguish their synthetic DNA from that naturally present in the bacterium, Venter’s team coded several famous quotes into their DNA, including one from James Joyce’s A Portrait of the Artist of a Young Man: “To live, to err, to fall, to triumph, to recreate life out of life.”

    After announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission. ”We thought it fell under fair use,” said Venter.

  • 6 digamma // Mar 27, 2011 at 10:45 am

    I’m with Luis. Right now, the debate over copyright is firmly controlled by the incumbents. Most people who don’t read tech blogs think of copyrights as no different from home ownership and don’t entertain these funny ideas of public domain. End of story.

    Once you start talking about what to do with orphan works, you allow nuance into that debate, and any nuance is against the interests of the people currently winning the argument.

  • 7 Chris Castle // Mar 27, 2011 at 12:59 pm

    1. If the last two efforts at orphan works legislation in the US are any indicator, certain public company search engines are very interested in an orphan works arrangement that benefits them.

    2. Realize that the predicate for orphan works from the pro-OW point of view often is that a work that is out of print becomes an orphan. Meaning that if you own a work, but aren’t exploiting it in a way that is satisfactory to the pro-OW folk, the work is an orphan and can be exploited by “the community”, which includes, of course, public company search engines. So if you owned a sound recording but there was no longer sufficient demand for the recording to justify a CD release, for example, some might argue that work would be orphaned even though you might still be able to license it for MP/TV, commercials, etc.

    3. Nobody, and I mean nobody, in the content business has ever been walking around saying what we really need above all else is a good orphan works law. The impetus for OW legislation lies almost entirely with librarians and their new allies, public company search engines.

    4. Google Books, which I believe was the closest anyone has come to building a commercial archive for books, has severe metadata problems (See “Google’s Book Search: A Disaster for Scholars” by Prof. Nunberg http://chronicle.com/article/Googles-Book-Search-A/48245/) Interestingly, the mistakes in the metadata regarding copyright dates seem to make the work much, much older than it actually is (therefore more likely to be in the public domain). Since a hallmark of orphan works legislation involves the “reasonably diligent search”, unreliable metadata with a bias for false public domain results isn’t helpful. But is understandable in the cold light of the commercial dawn.

    5. The moral hazard in the last two efforts at orphan works legislation in the US is that you put the person who wants to use the work in the place of the person who is responsible for finding the owner. Therefore, there is an immediate disincentive to look too effectively for the true owner.

    6. Canada solves this problem by having their Copyright Board conduct the search and issue the license. While it is often noted that Canada has issued few licenses as evidence that the restriction of having a government agency do the work is too burdensome, after inquiry I reached the more likely conclusion that there simply isn’t very much demand for the bona fide commercial use of orphan works. This will set the hair on fire of OW advocates, but it is a conclusion that should be taken seriously.

    7. The real problem is not with the RIAA and MPAA companies, it’s with the independent creators. Remember, an orphan works regime applies to all categories of copyright. Photographers, illustrators, designers, scrapbookers, all are affected and all complained like the dickens the last time around in the US and also in the UK. During the last orphan works legislation in the US, the Small Business Administration held an orphan works roundtable in New York at which all these smaller groups showed up and complained loudly. One illustrator asked for a “Katrina exception” to the orphan works bill to protect artists whose books and records were destroyed and who might not be able to prove their ownership of their works (as not all works of copyright are registered). These people are rarely considered by the Google amen chorus who prefer the straw in “Hollywood” as their opponent (whoever “Hollywood” is).

    8. Most independent artists view the orphan works issues as an insidious attempt by certain public company search engines and their pals to legalize wholesale appropriation of other people’s property, or as we say in the trade, OPP.

    9. I don’t know who these “incumbents” are, but that’s an awfully highfalootin name for a songwriter or a self-published author.

    10. The people who have the best argument for relief in order to digitize works are librarians who want to digitize their holdings (like Europeana). Simply focusing narrowly on their legitimate needs (and no, I would not count Google Books or Kickass Torrents as a library), would advance the ball.

    11. Recommended reading is “Google and the Myth of Universal Knowledge” by Jean-Noël Jeanneney, the former president of France’s Bibliothèque Nationale, who has a good deal to say about Google Books and may shed some light on how those in the world outside of Silicon Valley may view these issues.

  • 8 Julian Sanchez // Mar 27, 2011 at 9:24 pm

    “Realize that the predicate for orphan works from the pro-OW point of view often is that a work that is out of print becomes an orphan”

    I have never heard “orphan work” defined in that way, and I spend a lot of time around IP law geeks. And not that I particularly care whether a bad policy benefits small fry or big corporations, but you’re suggesting federal copyright policy is shaped by the lobbying efforts of “songwriters and self-published authors”? Please.

  • 9 Chris Castle // Mar 28, 2011 at 12:41 am

    Some do, Lessig distinguished works that are in copyright but out of print for which there was no publisher for Google to negotiate with. The fact that a work was out of print seemed to be of importance. He has a slide he uses twice in his Google Books/fair use lecture that specifically references a class of works that are in copyright but out of print. If he meant something else, I am not smart enough to divine it, and I would think that if he was just concerned with the unavailability of an owner or author for Google to negotiate with, he would have said just that, which he did not. Twice. (http://video.google.com/videoplay?docid=-7256091247456149593# it comes up a couple times but he gets very warmed up on the point right about 20:00 through the end.)

    This will no doubt come as great news to errors and omissions insurance carriers and rights clearance folk everywhere who have been tracking down rights owners for decades.

    You seem to disagree with Judge Chin who in his Google Books opinion quoted at some length from letters to the court by a variety of individual authors who opted out of the settlement and who are probably among those whom you would refer to as “small fry”. He specifically quoted from the heirs of a self-published author of the book “Dust and Snow” who believed that their relative’s copyright would be harmed by Google’s interpretation of orphan works.

    I’m not sure that these letters constitute “lobbying” or that these quotations are part of the holding of the case, and therefore may not be “policy”. They certainly did constitute voting. I do think it is pretty clear that Judge Chin—incorrectly I gather in your view—gave considerable weight to the rights of those you refer to as “small fry”. So have others in other contexts. (http://thepublicindex.org/docs/amended_settlement/opinion.pdf at p. 33-36)

  • 10 Julian Sanchez // Mar 28, 2011 at 10:00 am

    That doesn’t strike me as a reasonable reading at all: Lessig again and again stresses the inability to locate owners as the core issue. Nor does it seem terribly difficult to divine his purpose in focusing on this class, since he lays it out pretty explicitly. Of course, not all out-of-print books are “orphan works,” but pretty much by definition, all books that are orphan works will be out of print. (If they were in print, there would be an obvious rights-holder to deal with: Being out of print is a necessary, not a sufficient condition.) Since one of the factors in determining “fair use” is whether the use interferes with the commercial market for the book, he’s suggesting that this weighs in favor of classifying Google’s practice here as a fair use, because if a work is “orphaned” it is almost certainly not being sold commercially, and therefore the effect on the market is minimal.

    Now, you can reject that line of analysis—I can think of a couple obvious counterarguments offhand—or you can say that this puts too much emphasis on monetary remuneration as opposed to (say) control… but I don’t think it’s at all obscure what Lessig means. And it certainly isn’t that every out-of-print book is ipso facto orphaned—it’s the other way around.

    As for the ruling—yes, independent creators certainly may have an influence in court rulings; I was thinking primarily of legislation. But scanning those pages, I certainly do find it appalling that the vague and incoherent assortment of objections expressed there were given any weight at all.

  • 11 Chris Castle // Mar 28, 2011 at 10:29 am

    Re Lessig, I couldn’t agree with you more, I just don’t understand why he kept mentioning works that were out of print. In fact, in a later blog post it seems that he accepted a comment as correcting him on the point, although even that is somewhat ambiguous to me. But then I’m probably not smart enough to understand. (http://www.lessig.org/blog/2007/03/rubin_on_google.html)
    I would tend to agree with Judge Chin that the individual author comments were clear and persuasive, albeit from simple folk speaking simply (also known as citizens): “it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking
    their permission.”
    The next time that you’re in Congress and have a conversation with a Member in which you pursue your lobbying strategy of advising Members to ignore the little guy, please let me know and also let me know if I can sell tickets.
    Far be it from me to try to dissuade you from your strategy. It’s working so well for Google, and who can argue with success?

  • 12 Julian Sanchez // Mar 28, 2011 at 11:08 am

    C’mon, don’t play “Unfrozen Caveman Lawyer”—this is not really an obscure point. If genuine orphan works (at least in the case of books) are typically out of print, then there’s far less reason to be concerned with a deleterious effect on the market for that work, and therefore with the system of incentives copyright is meant to create. It’s just a special case of the same factor that always plays a substantial role in distinguishing fair use from infringement. You don’t have to agree, but I find it hard to believe you don’t understand the argument.

    This business about “ignoring the little guy” is disingenuous. To the extent that rights holders—whether tiny independents or the RIAA—can articulate some plausible harm to their interests, by all means, take that into account, consider the likely net effect on incentives to create, and weigh it against the countervailing benefit (to both consumers and producers) of greater access to the stock of cultural goods. But you don’t get good policy by asking which parties you find more sympathetic.

  • 13 Nelson // Mar 28, 2011 at 12:17 pm

    I see nothing wrong with keeping a central registry that tracks copyright holdings with a listed point of contact. It is fair that the copyright holder be required to keep their entry up to date in exchange for copyright protection.

  • 14 Chris Castle // Mar 28, 2011 at 5:06 pm

    I know, it’s so easy even a caveman can do it! While I use the opening sequence of “2001: A Space Odyssey” as a frequent metaphor because I identify with those poor fellows, I agree that defining OW should not be an obscure point—but adding the in print/out of print distinction obscures the point, just like Lessig’s introduction of the criteria of “cheap” and “simple” for orphan works searches that are neither simple nor cheap, and his suggestion of a bespoke “market failure” in their absence.

    Whether works are in print or out of print (including analogs across copyright categories) or registered or unregistered seems only important if one were trying to introduce a “use it or lose it” concept to copyright law. Which I suspect is why the OW solution in search of a problem has taken root in certain quarters and not others.

    Also, the use it or lose it or the opt-out concepts really don’t work with international treaties or national treatment of artists’ moral rights. At least according to the countries of Austria, Belgium, France, Germany, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland, and the United Kingdom that objected to the Google Books “deal” to protect their authors. While Judge Chin deferred properly to the Congress on resolution of these complaints, he gave due weight to the array of objecting nations before the court.

    Is the current law correct policy? America having finally accepted Berne over 20 years ago, the transaction cost of getting the Berne signatories from Albania to Zimbabwe to agree to a “use it or lose it” concept, an opt-out, or a registration requirement, seems astronomical and doomed.

    Alternatively convincing US artists that they should be treated worse than their colleagues overseas due to a bespoke “market failure” seems less likely still. None of this seems like optimal disruption to me absent a very good reason or ten I’ve yet to hear. At least none that wouldn’t end up in a WTO arbitration (see Fairness in Music Licensing Act).

  • 15 sardonic_sob // Mar 30, 2011 at 12:02 pm

    Nelson @ 12:17:

    Such a system might or might not be preferable, but it is not allowed by our IP treaty obligations. If we were to move to a system which required registration, we would have to withdraw from such treaties and would open ourselves to WTO sanction. The only reason we can have a copyright registration requirement for infringement lawsuits at all is that it’s a mere procedural requirement and doesn’t affect the rightsholder’s substantive rights once they choose to enforce them. (Our treaty obligations don’t require us to allow punitive damages, so it’s okay that we condition punitive damages on pre-registration. It’s a floor, not a ceiling, but it’s a floor that’s higher than you want to go.)

  • 16 Nathanael // May 25, 2011 at 10:41 pm

    Answer to your question, Julian? Congress is badly broken. (We know this for other reasons.)

    The current copyright law system is dead, anyway. Orphan works can and will be published by anyone and everyone, including Google, settlement or no settlement. The international “intellectual property treaties” are a dead letter.

    Our sclerotic government just hasn’t noticed yet.

    It’s gonna be kind of interesting watching it all fall apart. The government has the choice of catching up with reality or doing what the MPAA/RIAA ask for. As on so many other topics, if it ignores reality, it loses. If it loses on enough different topics (and this is far from the only one where it’s failing to reform itself, and far from the most important), eventually it’s not a government any more.

    It will be interesting.

  • 17 Nathanael // May 25, 2011 at 10:43 pm

    Incidentally, the various countries which are making stupid noises about authors’ “moral rights” are no more capable of enforcing their bogus, bad-policy laws than the US.

    China, on the other hand, is doing fine.

    A respect for reality is, for better or worse, what gets you ahead in this world, and at the moment, it’s the countries which ignore our current overreaching “intellectual property” garbage which are respecting reality.

  • 18 Nathanael // May 25, 2011 at 10:46 pm

    “8. Most independent artists view the orphan works issues as an insidious attempt by certain public company search engines and their pals to legalize wholesale appropriation of other people’s property, or as we say in the trade, OPP.”

    First thing to remember: YOU DON’T OWN IDEAS, and YOU DON’T OWN WORDS. If you think you do, I want nothing to do with your dangerous, anti-intellectual bullshit. If you’re *that* kind of artist, you deserve to be bankrupt and I will do my best to ignore everything you do.

    If, on the other hand, you are an independent artist who isn’t fanatical about mind control, then you don’t believe the bullshit Chris Castle just wrote, and you’ll be happy finding a business model which doesn’t depend on impossible mind control. Of which there are many.

  • 19 Nathanael // May 25, 2011 at 10:50 pm

    “after inquiry I reached the more likely conclusion that there simply isn’t very much demand for the bona fide commercial use of orphan works.”

    So what? The main problem with orphan works is the chilling effects of current abusive copyright law on NON-commercial use, Chris. Are you really such a little money-grubber you can’t imagine that?

    Or would you be happy with a simple rule that all non-commercial use of copyrighted works with a difficult-to-trace owner was automatically legal — a restriction of copyright to completely exclude the noncommercial sphere? Somehow I think you’d find a problem with that. (I don’t have a problem with it, but then I’m a socialist.)

  • 20 Nathanael // May 25, 2011 at 10:52 pm

    “Simply focusing narrowly on their legitimate needs (and no, I would not count Google Books or Kickass Torrents as a library), ”

    Credentialist. Google Books is, functionally, a library, and so is Kickass Torrents. I guess you’re a sort of old-fashioned scholastic — knowledge is for the monks, and nobody without a license can start a library.

    Geez. The number of fundamentally immoral things Chris wrote made me genuinely angry.

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