This is a response to the Copyright Office’s Orphan Works Notice of Inquiry by the American Illustrators’ Partnership, a non-profit organization dedicated to creating a mechanism to professionally administer collective management of individual illustrators’ rights.  In the letter, they petition the Copyright Office to maintain protection of orphaned works on all visual artistic works.  The response goes on to list various reasons why visual art should not be included in the orphan works bill, noting that “automatic protection of visual artistic works is guaranteed without formalities” under U.S. and international copyright law, that “authors’ rights are their incomes,” and that “creativity is not chilled by protecting orphaned works,” among other claims.  The letter also argues that orphaning visual works in the context of a culture of “appropriation” created by the Internet would foster infringement.

This response to the Copyright Office’s NOI offers the perspective of an important group of artists who have good reason to oppose the legislation – the visual artists.  However, the arguments offered in the letter are mediocre at best.  For example, the claim that creativity is not stifled under current copyright law is plainly false.  The Holocaust Museum alone can attest to thousands upon thousands of documents that cannot be used because their copyright owner is unknown, and there are countless other works that could be used by film makers, historians and others that are sitting unused in private collections and archives.  Moreover, the language used in the letter itself is misleading, claiming that the legislation will “strip orphaned works of their protection” when in fact it will just limit remedies in copyright infringement in cases involving orphan works.  Nonetheless, the letter does rightly point out that the Internet facilitates “piracy, unintentional infringement and plagiary” of visual works.  I think private visual registries are the solution to this problem, as they provide a reliable way for works to stay connected to their makers. 

This was a New York Times article from June 29, 2008 highlighting a case in which the orphan works problem played a role.  When Brian Merlis, a publisher of books of historical Brooklyn photographs, wanted to use two photographs in the archives of the Brooklyn Historical Society, the society rebuffed his request, citing copyright concerns.  Since the holders of the copyrights for the pictures – one taken around 1895 and the other in the early 20th century – are unknown, the society is unwilling to take the risk of using them without permission from them or their estates for fear of infringement.  Mr. Merlis’ objections became public when he wrote a letter to the local paper criticizing the decision.  The historical society said it was working to track down the copyright holders for the two images in question.

This is important for my paper because it provides a classic example of the type of situation brought about by the orphan works problem.  It also demonstrates why there are so few, if any, court cases involving orphan works, because people often do not use these works rather than risk infringement, thus avoiding a confrontation with an unknown copyright owner.  Mr. Merlis makes a legitimate argument:  if the historical society’s photos are omitted from his book, “Who loses out? The reader, the public, the people you want to spread the history to.”  Under the orphan works bill, Mr. Merlis will be able to use the photographs and pay “reasonable compensation” if the owners emerge – a great example of how the bill will help permissible artistic endeavors come to fruition. 

This is a visual registry proposal by Public Knowledge, Washington, D.C.-based public interest group representing citizens in the Digital Age.  They argue that visual registries created by private entities would be more viable than those created by the Copyright Office, which lacks the budgetary requirements and expertise in visual recognition technology.  They propose an accreditation-type registration model similar to the Domain Name System (DNS).  To register already-registered works into the new visual registry, they suggest that legislation be passed to permit competitive registries equal access to digitize the Copyright Office’s copyright deposits.  They claim that the Office’s current text-based system is inadequate “when searching for a specific image with specific characteristics,” citing content-based image retrieval (CBIR) systems as the solution.  According to the proposal, CBIR uses image processing, image analysis and computer vision technology to compare features of an image.  The proposal then lists some examples of CBIRs, arguing that the attainment of the technology by Google, “one of the pre-eminent tech corporations of the 21^st century,” points to the value of the system.

This article is important for my article because it addresses one of the most controversial issues with the Orphan Works legislation: how to create searchable databases for visual works.  The Register of Copyrights agreed with Public Knowledge in her testimony to a House Subcommittee that the Copyright Office lacks the technical and financial means to create such a registry.  The proposal does a nice job of summarizing some of the systems being used, thus demonstrating that “a visual registry is more than an option – it’s a reality.” While a visual registry would largely solve the problem of dissociation of visual works from their authors on the Internet, I think it is unreasonable to assume that visual artists will use the system to register all of their works – a cumbersome and highly costly task, especially for individuals and small businesses.  Therefore, since these artists would likely only register some works, a “diligent” search for visual works, such as photographs, should be required to go beyond these registries.  Fortunately, the Orphan Works Act takes this into consideration, requiring a would-be user to search printed publications, seek expert assistance, or take similar measures to find an owner.  The visual registries will not fix the problem of infringement of visual works, but rather will help alleviate it.

This was a paper that appeared in the Virginia Journal of Law and Technology of the University of Virginia in spring 2007.  It examines the Orphan Works Act of 2006 – the precursor to the 2008 bill that passed the Senate – in mathematical fashion, considering whether the Act would minimize overall transaction costs, whether such cost allocations would cause copyright orphans to be used more efficiently than the current system, and whether any potential efficiency increases would comport with the goals of copyright law.  The authors of the paper are surprised that little or no discussion by the Copyright Office and others has been generated as to how the Act allocates transaction costs.  They conclude that “the Act would allocate transaction costs efficiently at every step of the process, from encouraging searches and negotiation before infringement to providing for more efficient non-cooperative remedies after infringement.”  They also conclude that minimizing the transaction costs “would indirectly reduce the substantial economic and cultural costs of the orphan works problem currently borne by potential users and the public.”

This article is quite helpful because it provides a mathematical, objective analysis of orphan works legislation.  As I read the 2008 version of the bill and comments on it from interested parties, I too could not help but wonder about the lack of discussion about transaction costs, particularly among copyright owners, who will carry the majority of the burden by having to actively protect their work. I agree with the authors that creating searchable databases will improve the current copyright system by reducing the inefficiencies created by imperfect information, but I predict that users and owners will not be able to agree on “reasonable compensation” more often than not, instead passing the decision onto the courts.  In effect, this will create further bureaucratic burden and thus inefficiency.  In order to minimize this inefficiency, the Copyright Office needs to clarify what “reasonable compensation” means through statements of best practices and other measures that more clearly define the correct amounts to be paid by orphan works users to owners.

This was a March 2005 submission to the Copyright Office by the Center for the Study of the Public Domain at Duke Law School.  The article focuses on the problem of orphan films, which it says “make up the overwhelming majority of our cinematic heritage.” It notes that “media migration…is central to preservation efforts.”  Thousand of early twentieth century works are literally deteriorating beyond repair due to their volatile physical properties, and those that are able to be preserved by archivists cannot be viewed by the public anyway for fear of infringement.  The Copyright Term Extension Act created an incentive to preserve films by transferring them to new media, but cannot encourage the non-existent owners of orphan works to do the same.  The article argues that undiscovered copyright owners of orphan films would actually be better off under loosened copyright law; unidentified copyright owners who later emerged would benefit from restorations or from increased interest in their work. It also claims that the Supreme Court has indicated that “the constitutional goal of copyright lies ultimately in enabling access.”

This article provides strong evidence of the need for orphan work legislation.  It is quite fitting that the article about the orphan films problem is written by the Center for the Public Domain, since many of these films would have been available to the public if it were not for the Copyright Act of 1976, which created the current copyright system that the article calls “a tangle of strict liability and legal uncertainty.” Archiving old films is precisely the kind of work the bill should and does protect.  However, while the article claims that the constitutional goal of copyright is to enable access, I think the traditional goal to “promote the progress” is still the central objective of copyright.  The fact that films are rotting away – literally – under current copyright law is testimony to the fact that the law is stifling progress rather that promoting it.  It is important to note, though, that while the Orphan Works Act of 2008 will certainly help initiatives such as film preservation, other commercial industries, particularly visual artists, may be hurt in the process. 

This is a letter from the Motion Picture Association of America (MPAA) in response to the Copyright Office’s Orphan Works Notice of Inquiry.  It acknowledges that difficulties in identifying and locating owners of copyright in some orphan works are impeding the ability to make productive use of them.  However, it warns the Copyright Office to limit what it defines as an orphan work as one which a would-be user tries diligently to find the owner of and fails – in other words, “silence in response to the would-be user must not be presumed to be consent.”  The letter boasts that MPAA members’ “products in all formats are clearly labeled with identifying information about the copyright owner, producer and director” and that thousands of people use their records to locate and identify MPAA member companies as copyright owners of commercially released works.  Additionally, the letter notes that due diligence in searching for a copyright owner of motion pictures is not the same as that for photographs, “where the volume of works is huge and a search of the publicly accessible records may be far more difficult and less productive.”  The MPAA goes on to address specific questions posted by the NOI, such as defining the nature of orphan works. 

This letter is important to my article because it represents, by extension, the opinion of Hollywood on the Orphan Works Act. As is always the case, the MPAA hopes to retain as much power as possible.  Therefore, not surprisingly, MPAA only halfheartedly advocates orphan work legislation, noting that there is “sometimes a problem” identifying and locating copyright owners but that we should use caution in determining what constitutes an “orphan work” and a “diligent search” for that work.  Ironically, the legislation will most likely benefit Hollywood by both giving documentary filmmakers the ability to make greater use of works they would have not incorporated into their films for fear of copyright infringement, and expanding the film industry by making available thousands of films previously unavailable to the public. Nonetheless, just as with DMCA legislation, the MPAA wants to exert much authority over its products as possible to thwart drastic changes in copyright legislation as long as possible.

This is a letter written by Google executives as a response to the Copyright Notice of Inquiry regarding orphan works.  It describes Google and the services it offers, most notably Google Print, which aims to make searching for books and their content as easy as searching for Web sites.  The letter also outlines how Google is directly impacted by the problems presented by orphan works, namely that they “show much more limited information on the assumption that that is what the copyright holder would prefer,” even though “that assumption is often wrong.”  Finally, the letter proposes a two-step solution to the orphan works problem:  (1) the creation of a simple, accurate and reliable searchable database and (2) changing the Copyright Act to preclude users of orphan works from infringement liability while ensuring that copyright holders do not lose their copyright due to failure to adhere to a formality. 

As the king of Internet search, Google, on a mission to digitize all knowledge, is an important source for my paper.  The company openly admits in the letter that it plans to exploit the Orphan Works Act to make material available online through its search engine that it cannot currently because it doesn’t know who to ask for permission to use the work, whether for a fee or for free.  The orphan works bill is essentially a goldmine for Google, giving the company access to millions of works that are currently not being used for fear of copyright infringement.  Although Google will use the orphan works for personal motives, i.e. commercial use, I think this is the type of use the writers of the bill had in mind and, ultimately, the type of use the writers of the Copyright Clause approve to “promote the progress.”  However, while I think Google Print could be quite beneficial in making orphan books and publications accessible, I think doing the same for orphaned photos and other visual art could be more difficult and perhaps harmful to artists because these works are often dissociated from their authors and might show up on Google searches without bylines or any sort of identification.  That said, to solve this issue, I think Google is best-equipped to create the very registries it so enthusiastically endorses in the letter.

This is a statement by Marybeth Peters, the Register of Copyrights, before the House Subcommittee on Courts, the Internet, and Intellectual Property.  First she defines the orphan works problem and how it came about, noting in particular the “sweeping changes to copyright law in the past 30 years.”  She explains how the Copyright Act of 1976, copyright term extensions, and “automatic renewal” have increasingly kept works out of the public domain.  She then offers the proposed solution of the Copyright Office, “a framework whereby a legitimate orphan works owner who resurfaces may bring an action for ‘reasonable compensation’ against a qualifying user,” which is deemed fair “because it approximates the true market value of the work.”  The response of the copyright community, she says, has been supportive with the exception of photographers and other visual artists whose work is often dissociated from their name and therefore seems orphaned when it’s really registered.  Finally, she notes some current issues being addressed by the copyright office, including creating strong and flexible search criteria made possible by the creation of databases for various types of work.

This testimony is important to my article because it provides an explanation of the intuition and motivation behind the Copyright Office’s involvement in orphan works legislation.  However, I think there are several problems with the Office’s position on the bill.  First, the Office says it wants databases to be created to facilitate the search process, but it also says it doesn’t have the “technical expertise” to certify them, which raises the question of who will create the databases and how reliable they will be.  I also think, as does Lawrence Lessig, that the bill should not apply to visual works until the proper search technology is available, since photographs and other visual works are constantly dissociated from their author, especially in the Digital Age.  As it stands, the bill will go into effect on January 1 whether or not two or more registries for visual works have been implemented.  On the whole, however, I think the Copyright Office rightly recognizes the need to reduce the risk of using orphan works in order that they be used rather than ignored.

This is the version of the Orphan Works Act of 2008 passed by the Senate on September 26.  It is based on proposed 2006 Orphan Works legislation and aims “to provide a limitation on judicial remedies in copyright infringement cases involving orphan works.”  It is meant to protect museums, libraries, historians, archivists, film makers and the like who have faced challenges balancing risk and liability in the use of orphan works – that is, works that are still under copyright but whose owner is unavailable or unknown.  The bill requires the user to make a “diligent” search to find the copyright owner of the work, and if he cannot and uses the work without permission, the orphan works owner who resurfaces can request “reasonable compensation.”  Compensation is determined between the user and owner and, if they cannot come to an agreement, the amount is decided in a court of law.  Statutory damages do not apply to the use of an orphan work, except to those who use it after the owner emerged or to the original user making a new, subsequent use.

This bill constitutes the topic of my paper.  While I think it effectively addresses the long overdue problem of orphan works, we should consider the heavy burden it puts on creators to protect their work.  The Copyright Act of 1976 create passive copyright protection for all works in an attempt to conform U.S. copyright law to international standards, the caveat being that one cannot receive statutory damages for infringement unless his work is registered with the Copyright Office.  The Orphan Works Act will amend the ’76 Act by promoting active protection by encouraging copyright owners to make themselves known to would-be users of their work.  However, its terms such as “diligent” searches and “reasonable compensation” are vague, which may result in burdening the court with many of these orphan works cases unless reliable lists of “best practices” for searching for various types of work are created.  Overall, the bill is a well-intentioned effort to help museums, historians and researches by reducing their liability.  However, it may lead to willful infringement of visual and other works which often dissociate from their authors in the Digital Age.