Artists have taken note of the recent legislative activity in the European Union regarding “orphan works”.  The European Union defines these works as “works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. Orphan works are part of the collections held by European libraries that might remain untouched without common rules to make their digitisation and online display legally possible.”

Of course, these libraries–the real ones, like the British Museum, not the Google Books Project–have a legitimate interest in digitizing their holdings and making them available online.  However, just as we saw with the Google Books project, Big Tech uses orphan works as a dodge (note that the lobbyist for the “Library Copyright Alliance” also is the lobbyist for the Computer & Communication Industry Association and the Net Coalition–and has been going around the country bashing collecting societies who want payments from his clients.  What’s common to all these things?  Google.

We are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session because the U.S. Copyright Office is soliciting comments in a Notice of Inquiry proceeding that closes February 4, 2013 (in a few weeks).

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 and is used by permission of the author.

If you missed Part 1 of this important article, you can read it here along with Brad’s bio.

Part 2: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

Claims Without Evidence

While academics, college professors, and students may have submitted anecdotes to the Copyright Office study, the weightiest contributions appear to have come from big Internet concerns whose business models depend on providing free or cheap access to other people’s intellectual property. These groups invariably submitted statements claiming that creative works once published have virtually no commercial value. A typical example is the joint statement submitted by NetCoalition.com, whose members “include Bloomberg, CNET, Google and Yahoo, as well as a number of smaller state and local ISP associations.” The coalition congratulated the Copyright Office for identifying “a significant issue that requires expeditious resolution.” Then it stated:

“The vast majority of copyrighted works have little or no economic value soon after their creation or publication.”⁹

This blatant assertion was offered with no evidence of any kind, nor was it even propped up by argument. Indeed, the letter went further (again without evidence) to state that “[a]uthors of such works typically are willing to permit others to reproduce, distribute, perform, or display their works at no charge because the authors still benefit in tangible and intangible ways from their uses.” (Italics added. ) ¹⁰

It should be self-evident that such unsupported conclusions are self-serving. Many Internet content providers are dependent on business practices that have invited major lawsuits for infringement. In March 2007, for example, Google filed a mandatory 10-Q Filing with the US Securities and Exchange Commission in which it acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business.” [Italics added.] ¹¹

Having acknowledged their exposure to costly infringement litigation, one can easily understand why such companies might seek to denigrate the value of the work they’ve been charged with infringing. What’s not clear, however, is why the US Copyright Office should urge Congress to undermine the intellectual property rights of citizens based on such claims.

Google Sees Value in Orphan Works

Despite having joined its NetCoalition partners in asserting that orphaned works “have little or no economic value,” Google sang a different tune at the Orphan Works Roundtables on July 26, 2005 in Washington. There, the company’s attorney, Alexander MacGillivray, made it clear that his firm actually believed the work under consideration was worthless only when it still belonged to the people who created it:

“The thing that I would encourage the Copyright Office to consider is not just the very, very small scale – the one user who wants to make use of the [orphaned] work – but also the very, very large scale – and talking in the millions of works.” ¹²

“Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable. In fact, I think that’s why most of us are here. We do think there is a lot of value in these works.” ¹³

“[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range…we know that many of them will be in the public domain, that most of their authors won’t care. But there are a few that really will care and they will come forward [to ask for payment] and it will be extremely inefficient for us [to have to pay them].” (All italics added.)¹⁴

Four months later, in November 2005, at the same time as the Copyright Office was concluding its Orphan Works study and preparing its final report to Congress, Google made a surprising $3 million contribution to the Library of Congress for its “World Digital Library” project. The Library of Congress oversees Copyright Office activities. While the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest, and perhaps only private sector contributor. ¹⁵

Turning a Legal Fiction into Reality

It’s not a compelling argument for a large global corporation to say it should be allowed to infringe your intellectual property based on its own assurance that your property is worthless. But while Internet powerhouses such as Google can only make such assertions, a more devious strategy has emerged from the small but dedicated core of copyright “reform” attorneys smitten by the romance of mass digitization. Their idea was not simply to claim that small rightsholders’ work is worthless, but to propose a legal metamorphosis that would make it so.

Of particular interest is the 106 page paper “Reform(alizing) Copyright” submitted to the Copyright Office by the advocacy group Creative Commons. In it, attorney Christopher Sprigman proposed a scheme that would effectively roll back the 1976 Copyright Act by requiring artists, writers and others to mark and register every single work they create or find the work deemed (page 491) “commercially valueless”: ¹⁶

“[T]his Article proposes a system of formalities that, although nominally voluntary, are de facto mandatory for any rightsholder whose work may have commercial value. Non-compliance with the newstyle formalities would subject works to a perpetual and irrevocable ‘default license’ with royalties set at a very low level, thus effectively moving works into the public domain.” (Emphasis added.) (Pages 490-491)¹⁷

The logic behind this proposal is as cynical as it is clearly stated. Since authors, particularly visual artists, would lack the time and resources to mark and register every drawing, painting, photograph or sketch they create, then track and renew these tens of thousands of registrations over a period of decades, billions of copyrighted works by working authors would inevitably fall through the cracks and into the public domain. This would happen not because the authors have actually abandoned their works (which would be the legal presumption), but merely because the law had swamped them with paperwork. In effect, this proposal would turn a legal fiction – that “most copyrighted work has little or no value soon after its creation or publication” – into reality.

The problem with this proposal is that any government that required rightsholders to register their work as a condition of its protection would violate international copyright law. Article 5.2 of the Berne Convention is explicit: “The enjoyment and the exercise of these rights shall not be subject to any formality.”¹⁸

So, the question for advocates of registration became how to skirt the letter of the law in pursuit of its violation. The answer turned out to be simple: amend existing copyright law to “limit” the remedies for infringement wherever an infringer can successfully assert an orphan works defense; then promise rights holders that they can sill protect their exposed work, but only by registering it with for-profit databases to be created in the private sector. Then let the marketplace take care of the rest. Once infringers came to rely on these databases as one-stop shopping centers for rights clearance, any work not available from the databases would become a de facto orphan. This would avoid an explicit violation of international copyright law because it would not legally require you to register your work. It would merely redefine your work as an orphan if you didn’t.

According to the official account, this proposal was the result of the Copyright Office’s year-long study. The facts, however, don’t bear this out.

“The Legislative Blueprint”

The essential language of the Orphan Works legislation was written at least a year before the release of the 2006 Copyright Office Report. It was drafted, ostensibly by law students, as a classroom project at the Glushko-Samuelson Intellectual Property Law Clinic under the guidance of its Director, Peter Jaszi and was submitted to the Copyright Office March 24, 2005. In a few simple words, the Glushko-Samuelson Copyright Clearance Initiative (CCI) spelled out the operative feature of the Copyright Office recommendations that were released nearly one year later. From the CCI, Section III (page 5):

“Remedies and Liability “Under no circumstances will Sec. 504 statutory damages, attorneys fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.

•  If infringement by a qualified user is proved, damages would be limited to the lesser of •  Actual damages or •  An award of $100 per work used, up to a maximum of $500 for any group of works claimed by a single owner and subject to a single use.”¹⁹

This “limitation on remedies” was rationalized (page 6) as necessary to guarantee “certainty” to good faith infringers. Supposedly this would protect the “innocent” infringer from ruinous fees or penalties in the event the owner of an infringed orphan “came forward.” It was said this would encourage worthy users to make older works of cultural or historical significance available to the public. If so, it was never explained why the bill would throw the doors wide open to infringement by commercial users. Since the emasculation of penalties would apply throughout the entire world of publishing, it would create a haystack of “legal” infringements in which bad faith infringers could hide like needles.

To pass such a law would pull the only teeth that current copyright law possesses. There’s no other mechanism for copyright enforcement; no Copyright Bureau of Investigation, no Copyright Office Police Force. All copyright owners are responsible for policing their own copyrights, and the existing penalties for infringement are the only mechanism the law gives us to do it with. Provide infringers with certainty and you create massive uncertainty in commercial markets as well as in the lives of all small copyright owners.

This was one of the key objections to the Glushko-Samuelson proposal that medical illustrator Cynthia Turner and I raised on May 9, 2005, when we submitted a critique of the Glushko-Samuelson proposal to the Copyright Office study. ²⁰We faulted it for granting benefits to scholars, consumers, the public – and infringers – at the expense of authors’ rights:

“The Glushko-Samuelson plan proposes a ‘minimalist approach’ to amending Title 17 USC. But what it actually portends is an expansion of fair use by weakening authors’ rights. It would empower users to annul copyrights based on the user’s own definition of due diligence.

“Glushko-Samuelson defines an orphan work (p. 3) ‘as a work for which the copyright owner cannot be reasonably located.’ But it allows the would-be user to define what constitutes a reasonable effort, then it defines ‘reasonable effort’ as ‘a flexible definition that applies to a variety of situations . . .’ It adds: ‘In the rare instances where there is disagreement about whether a search was adequate, the courts are open to make the required determination.”²¹

“But while sending authors to court to seek relief from abuses,” we concluded (page 5) that the plan “would restrict an author’s ability to seek redress.” In effect this would undermine copyright protections for all but large corporations, which in most cases would have the resources to staff up and register work, then hire sophisticated search technology to police and protect the copyrights they acquire. ²²

The full text of our critique can be read on the Copyright Office website, where it’s been sitting [since 2005]. These excerpts should be enough to demonstrate that it reads like an analysis of the final Orphan Works bill; yet we wrote it 10 months before the Copyright Office report was released and more than a year before the House Judiciary Subcommittee unveiled its first legislative draft. Clearly we could not have condemned the Orphan Works plan a year before it was written if the plan itself had not been written sometime before we condemned it.

To be continued..

10.  ibid

11.  United States Securities and Exchange Commission Form 10-Q/A, Amendment No. 1, Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended March 31, 2007, Page 36  http://investor.google.com/documents/20070331_10-Q.html

12.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 21   http://www.copyright.gov/orphan/transcript/0726LOC.PDF

15.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 119 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

13. United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 166 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

14. “Library of Congress Launches Effort to Create World Digital Library,” News From the Library of Congress, November 22, 2005 http://www.loc.gov/today/pr/2005/05-250.html

15. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Comment to Copyright Office Orphan Works Study, Page 491 http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

16. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Pages 490-491, Comment to Copyright Office Orphan Works Study http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

17. Article 5.2 Berne Convention for the Protection of Literary and Artistic Works http://www.law.cornell.edu/treaties/berne/5.html

18. Glushko-Samuelson Intellectual Property Law Clinic Response to Notice of Inquiry on the Issue of “Orphan Works,” Submitted to the United States Copyright Office, Library of Congress March 24, 2005, Page 5 http://www.copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

19. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

20. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 3http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

21. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 5 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf