We at the Trichordist are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session.  We take a dim view of the “orphan works” theory–it seems to be yet another way of undermining copyright through a back-door safe harbor.  If the last effort at “orphan works” legislation was any guide, it will another excuse for copyright infringement–if the infringer doesn’t quite qualify for a “fair use” defense, then they will say that their use of the infringed work is an “orphan” because they tried really, really hard to find the copyright owner, but couldn’t quite seem to find them.  We think that “orphan works” puts the fox squarely in the henhouse, and is another clear example of the law creating another moral hazard to the detriment of artists.

We have a lot of readers in the music business, and people in the music business often think that “orphan works” don’t affect them–we have all these databases after all.  That places an awful lot of trust in the infringer.  Remember–Google specifically asked the Copyright Office to consider users of “millions” of orphan works and the outside counsel for Google seems to be parking the orphanworks.com domain on the EFF’s servers.  Still want to be so trusting?  What about Google getting 3 million DMCA notices a week for search alone suggests that artists should trust the system?  Keep this thought in mind as you read the article:  If orphan works represent a market failure, how can you have a market failure without a market, and how can you have a market without enforceable property rights?

We are pleased to be able to serialize an excellent article about the history of the “orphan works” movement in the U.S. written by the distinguished illustrator, Brad Holland.  We encourage readers to make common cause with the illustrators and photographers who will likely be most harmed by this specious legislation backed by Google the last two times it appeared in the Congress.  The article first appeared in the Journal of Biocommunication in 2010.

Part 1: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

About the Author

Brad Holland is a self taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Playboy, Rolling Stone, the New York Times and many other national and international publications. His paintings have been exhibited in museums around the world, including one-man exhibitions at the Musée des Beaux-Arts, Clermont-Ferrand, France; the Museum of American Illustration, New York City and the Torino Atrium, Turin, Italy. His satire of the art business, “Express Yourself, It’s Later Than You Think,” first published in The Atlantic Monthly, has been widely republished, both in print and on the Internet. In 2005 he was elected to the Society of Illustrators Hall of Fame.

“During a career that has stretched over three decades,” wrote Steven Heller in Print Magazine, October 2002, “Brad Holland has changed the way illustration is perceived and practiced. By the late ’60s he had helped transform a profession of renderers into one of conceivers, challenging editors and art directors to let him create images that complemented rather than mimicked texts.” In 2000, the editors of the artists’ directory RSVP voted Holland “the one artist, who in our opinion, has had the single greatest impact on the illustration field during the last twenty five years.” Holland has won more awards presented by the New York Society of Illustrators than any other artist in its long history. The American illustrator Mark English has called him “the most important illustrator in America today.”

In the last decade, Holland has become an outspoken advocate for artists’ rights and is a founder of the Illustrators’ Partnership of America. In 2005, he represented artists at the Orphan Works Roundtables held by the US Copyright Office; in 2006, he testified before the Intellectual Property Subcommittees of both the US House and Senate, and in 2008 he and medical illustrator Cynthia Turner led the opposition to the Orphan Works Act of 2008. It was through their lobbying efforts that the US Small Business Administration acted to conduct its own Orphan Works Roundtable at the Salmagundi Club in New York City, August 8, 2008.

Holland is featured in the documentary, “Citizen 3.0 Copyright, Creativity and Contemporary Culture,” available at www.kinobserver.com and his article, “First Things About Secondary Rights,” published by The Columbia Journal of Law and the Arts is available at weblog.ipcentral.info/holland_ColumbiaLaw.pdf

Holland’s blog, Poor Bradford’s Almanac, can be accessed at http://www.drawger.com/holland/?article_id=9022

Introduction

In 2004, lawyers at the US Copyright Office adopted a premise of the anti-copyright lobby that the public is being harmed because some people lack sufficient access to other people’s copyrighted works. In 2006 they released the results of a year-long study, announcing that they had documented evidence of a “market failure” so serious that Congress should amend existing copyright law to spare the world the loss of valuable cultural works.

The changes they proposed would effectively redefine each and every creative work as a potential “orphan,” unless the author takes steps to register it with new commercial registries yet to be created in the private sector. This would reverse the automatic protection currently guaranteed by the 1976 Copyright Act. Yet this radical change to a law protecting private property was to be enacted not by a transparent Congressional debate over new legislation, but through the Trojan Horse of an Orphan Works Amendment that would serve to emasculate the penalties for infringement whenever an infringer believed that he or she had made a “reasonably diligent” but unsuccessful effort to find the rightsholder.

Twice (in 2006 and 2008) the bill’s sponsors have tried to ram this legislation through the US Congress. The last time they nearly succeeded by means of backroom deals. Both times the legislation was stopped by an aggressive opposition campaign led by artists and photographers. Although the legislation’s stated purpose has been to let libraries and museums digitize their archives of old work, the bill would actually permit the widespread commercial infringement of work created by contemporary artists and ordinary citizens. While supporters say the bill would help users find artists so that artists can be paid, the provisions would undermine every artist’s exclusive rights, devalue works in derivative markets, breach contracts past and present, and expose every citizen’s intellectual property to unwanted changes and uses.

When spelled out like this, it’s hard to see why anyone would want such legislation. But if we go to the heart of the matter, we’ll see why some special interest groups have invested so much time and money in the effort.

Harvesting Orphans

The Internet has made it possible for entrepreneurs to create financial empires by supplying the public with access to copyrighted material. The problem for these enterprises is how to cheaply acquire the legal right to license other people’s intellectual property. By redefining millions of copyrighted works as orphans on the premise that some might be, this legislation would allow Internet content providers to profit by harvesting the works this law would orphan, providing their online databases with marketable content they could never afford to create themselves nor license from authors.

To justify this mass transfer of intellectual property from individuals to corporations, scholars of the anti-copyright lobby have whitewashed it as a long-overdue public service. Taking a page from postmodern literary criticism, they argue that individual authorship is a “romantic myth,” suggesting that all creativity comes from the masses and that a change in the law is therefore necessary to give the masses access to their communal property. In this theory then, big Internet corporations would merely be sharing the property of ordinary citizens with other citizens for the greater good of the public.

The idea of a left-wing literary theory employed in the service of a potential corporate rights grab may strike some as incongruous. Yet the fight over this bill is merely one battle in a gathering war on authors that has united opportunists of the right and left. Surprisingly, this effort was launched by a government agency long thought by many to be author-friendly. So to understand the symbiotic relationship that has made left-wing theorists the Remoras of big business, we need to look closely at the document that’s routinely used to justify the amendment: the US Copyright Office’s 2006 Report on Orphan Works.

The Myth of the Big Chill

Public Knowledge is a Washington-based “advocacy group” with a Six Point Plan to “reform” copyright law.¹On May 29, 2008, its President and co-founder Gigi Sohn, addressed the 8th Annual Intellectual Property Symposium at the Center for Intellectual Property at the University of Maryland University College. In her speech she presented the official account of how the Orphan Works bill had risen out of the foamy sea of copyright chaos.

“At the urging of libraries, museums, academics like American University Law Professor Peter Jaszi, and advocacy groups like Public Knowledge, the Copyright Office sought public input on the orphan works problem and suggestions for how to deal with it. After receiving some 850 comments from a wide variety of stakeholders, the Copyright Office in 2006 issued a detailed report that showed that there was ample evidence that users were chilled from using works under copyright when they could not find the holder, and that as a result, millions of works were not being used. The Copyright Office proposed a framework for solving this problem that has, for the most part, become the basis of the current legislation.” (Italics added.)²

This official line has become the standard talking point supplied by the Copyright Office to Congressional lawmakers and by lawmakers to their constituents. If you’re one of the tens of thousands of copyright holders who’ve already written Congress to protest this bill, you’ve probably received a version of the talking point in your Congressman’s reply: Congress will do what’s best for all parties and rely for guidance on the detailed Orphan Works Study conducted by the Copyright Office.

But what if this “detailed study,” with its inference of millions of “chilled” copyright users, was based on no more “evidence” than 215 anecdotal letters? What if its legislative “framework” was written not after the year-long study, but before it? Here are the facts. In 2005 the Copyright Office published a Notice of Inquiry³ requesting comments from interested parties on the specific subject of orphaned work. It did not inquire about the workings of commercial markets, and there is no evidence in its subsequent report that business clients have any substantial difficulty finding the authors they wish to work with. While it may seem heretical to suggest that the Copyright Office report contains no evidence to justify its sweeping recommendations, the fact is it doesn’t. How it came to be accepted as an important study requiring the overturning of existing copyright law is quite a story.

A “Paucity of Data”

In its 2006 Report on Orphan Works, the Copyright Office reported “an overwhelming response” to its “year-long study.” The Register of Copyrights testified to Congress that it “documents the nature of the orphan works problem, as synthesized from the more than 850 written comments we received.” ⁴In a nation of more than 300 million people, 850 letters might not seem like an “overwhelming response.” Yet read the Report itself, and we learn that at least 600 of those letters had to be discounted as irrelevant. Here’s how the Copyright Office itself characterized the results:

Page 17: “The [Copyright] Office received an overwhelming response (by comparison to past studies), receiving 721 initial comments, and 146 reply comments [for a total of 867].”

Page 21: “A large portion of the comments (about 40%) did not identify a specific instance where a copyright owner could not be identified or located.

“Another portion (10%) presented enough specific information for us to conclude that the problem presented was not in fact an orphan works situation.

“Still, approximately 50% of comments did contain information that could fairly be construed as presenting an orphan works situation, and a significant number of those comments (about 45%, or about 24% of all comments) provided enough information about a specific situation for us to conclude that it presented an orphan works situation.” (Italics added.) ⁵

Twenty four percent of 867 letters equals 215. This means that even by counting “reply comments,” there were no more than 215 letters to the Orphan Works study that could even “be construed” as relevant to the subject. While the President of Public Knowledge has said these comments came from “a wide variety of stakeholders,” it appears they overlooked the stakeholders with the greatest stake of all: authors. Instead, most of the comments appear to have been generated by appeals such as this one, from the College Art Association to its members:

“As you may already know, the U.S. Copyright Office is soliciting formal comments from the public on the problem of ‘orphan’ works… If successful, this initiative could significantly help artists, scholars, and others who use copyrighted images and texts in their creations and writings… In order to make a strong case to the Copyright Office, we need anecdotes – as many as you can think of – about specific instances where scholars or artists have had difficulty using copyrighted materials because the copyright holder cannot be located.” (Emphasis added) ⁶

By telling artists, scholars, and others that they would “significantly help” creators by flooding the Copyright Office with such anecdotes, what artist, scholar, etc. would not want to help by responding? One wonders though, how accurate is the implication that a scholar’s “inability to locate a copyright holder” could lead to legal peril. In fact, it appears to be at odds with the truth. As the drafters of the 1976 US Copyright Act made clear:

“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights.” (Emphasis added.) U.S. Code, House Historical and Revision Notes Report No. 94-1476, at 136 (1976) ⁷

We can’t know how many of the 215 “relevant” letters were generated by appeals from such groups as the College Art Association, or how many were based on misinformation regarding the latitude of “fair use” available to copyright users. Yet even if every single letter of the 215 represented a legitimate “orphan works situation,” it would hardly qualify as “ample evidence” that “millions” of potential users are being “chilled from using works under copyright.” In fact, as David Rhodes, President of New York’s School of Visual Arts has observed:

“[I]n its report the Copyright Office provides little or no evidence that there is in fact a problem. There is no systematic review of the various markets to see if they are in fact dysfunctional. All of the supposed examples of the harm caused by orphan works are clearly anecdotal and in a country of 300,000,000 fall far short of the threshold for serious consideration. The Copyright Office’s own paucity of data should lead one to conclude that ‘Orphan Works’ are not a problem at all.” ⁸

Of course, that’s not what the Copyright Office concluded.

To Be Continued….

Footnotes

1. Gigi B. Sohn: “The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps,” Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008 http://www.publicknowledge.org/node/1594
2. ibid
3. United States Copyright Office, Library of Congress, Notice of Inquiry on Orphan Works, [Federal Register: January 26, 2005 (Volume 70, Number 16)] [Notices] [Page 3739-3743] http://www.copyright.gov/fedreg/2005/70fr3739.html
4. Register’s testimony on the “Orphan Works Problem and Proposed Legislation” before the Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives March 13, 2008 http://www.copyright.gov/video/testimony-3-13-08.html
5. Report on Orphan Works, A Report of the Register of Copyrights, January 2006 United States Copyright Office    http://www.copyright.gov/orphan/orphan-report.pdf   (Note: download is 133 pages.)
6. College Art Association. This website appeal is available at: http://web.archive.org/web/20050319091445/www.collegeart.org/orphan-works/
   and the emailed appeal to members can be accessed as a re-post at:
   http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=H-New-Jersey&month=0503&week=a&msg=+ByJSt4DOW0FQI+t+wMbZg&user=&pw
7. U.S. Code, House Historical and Revision Notes Report No. 94-1476, at 136 (1976) http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000302—-000-notes.html
8. David Rhodes, President, School of Visual Arts, U.S. Small Business Administration Roundtable on Orphan Works Legislation, August 8, 2008