Lawrence Lessig Orphan Works Proposal

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is a movie/ presentation by lawyer Lawrence Lessig in response to the Orphan Works act of 2006. In it, Lessig traces the orphan works debate back to his case Eldred v. Ashcroft. After providing the legal background, and stating the orphan works problem, he goes on to disagree with the Orphan Works act of 2006. His argument is that the bill “goes too far, and not far enough:” that it goes too far in removing copyright protection from the owners, and not far enough by making it extremely difficult for users determine whether a work is orphaned or not. His own alternative is given in the end, in which he suggests a simpler scenario which corrects some of the failures of the proposed bill.

Lessig admits that there are benefits to the legislation. The two of them include (1) the realization that there is an orphan works problem, and (2) the recognition that copyright owners will have to be part of the solution.

The negative elements of the bill are grouped in 3 categories: who, when and by what are copyright owners affected. The 2006 act affects everyone, now. All the owners must always be identifiable. This is unfair to copyright owners, because after the 1976 act, they have not been required to register their work. Suddenly, they are told that they do, with the penalty of losing their rights. It is especially unfair to foreign copyright owners. What must both domestic and foreign rightsholders do to make sure they can be identified, after a “reasonably diligent search?” The bill does not propose an answer. The later is exactly what is going to affect rightsholders: the murky term of a “reasonably diligent search.” Although the bill includes a list of how to determine whether a search is reasonably diligent, the requirements are unclear. This “mush” will be a permanent cost to libraries, and a permanent uncertainty for users.

Lessig suggests an alternative, in which owners have an obligation to maintain their copyright in a way that makes it easy for people to identify and get access to them, after a specified term. Under this plan, the government should provide the protocol for the creation of searchable registries towards which rightsholders are going to turn when they need to be identified. Market forces should keep the cost for registering very low (as low as buying a domain name). This proposal does not extend to foreign copyright holders, because of the Berne convention.

This is an important source because of three reasons. (1) It provides a straight historical connection from Eldred vs. Ashcroft to 2007. (2) It disagrees with one of the solutions to the orphan works problem and shines light on the legislative weaknesses. (3) It provides an efficient counter-proposal. This proposal shows similarities and differences with the Google Book Search approach – elements which will be used in support of my argument in favor of a Google-ized orphan works solution.