The Fair Use/Orphan Works Connection: A Lesson from the UK

We would all do well to observe the intellectual property meltdown occuring in the UK largely as the result of the so-called “Google Review” commissioned by the UK government (officially titles the “Hargreaves Review”).   This is particularly acute given the concurrent “agency capture” of the UK’s Intellectual Property Office (roughly equivalent to a combined version of our Patent & Trademark Office and Copyright Office).

We should expect to see Google and its allies (CCIA, CES, various library associations) go for something similar in the Congress that starts this week in the US.

The Register’s Andrew Orlowski sums it up well:

The threat to the sovereignty of the individual now comes from academics and bureaucrats. Parliamentarians spent much of the year studying the radical, activist department of Whitehall called the IPO, the Intellectual Property Office – formerly the Patent Office, which has been behind a succession of moves to strip the individual of his or her rights. The MPs and Lords stopped short of calling for the IPO to be disbanded, but reminded the bureaucrats that copyright is a property right – not a regulatory impediment to some imaginary digital Utopia.

The IPO responded by placing a permanent extension of its powers onto the Coalition’s Business and Enterprise Regulatory Reform Bill (BERR) and seeking, in effect, to “do a Zuckerberg” by statute. Millions of unidentified works, without metadata, would be swept into schemes where they could be commercially exploited without the knowledge of their owner. It’s the only scheme in the world which proposes to allow third parties to rip off the creator for profit. The UK faces a “firestorm” of litigation from overseas, US creators have warned. And expect to see some real fireworks as the Bill moves into report stage.

(Note that China is beefing up its IP – the winner of the new economic wars will be the nation that can best protect and exploit its inventiveness).

Why has Britain been blessed with such a barmy bureaucratic class? They’re undoubtedly sincere in thinking the public would benefit from removing rights from creators. But we could abolish copyright entirely overnight and have an orgy of consumption – only to wake up from the Remixing Party with a headache, discover the creative industries have upped sticks and moved abroad (easier to do than you might think), at a huge cost to future growth and economic opportunities.

Politicians don’t really understand the potential damage, and won’t really appreciate the dangers, until UK businesses decide they need to move outside the UK to protect their work.

The UK government has been mislead by Google into thinking that somehow “fair use” was a cornerstone to the company’s success–naturally, “fair use” as defined by Google has found its way into the Google Review.

Alison Wenham, OBE, chair and chief executive of the Association of Independent Music, confronted Hargreaves at one of the few (if not the only) public meetings to receive comments about the Google Review before the report was issued.  She said:

“’I don’t believe IP is the problem,’ said Alison Wenham, representing independent music companies. ‘One of reasons Google did not start here is nothing to do with IP, it was to do with funding. The US has a rich culture of high risk investment and unfortunately our banking system does not value this, we have a criminal lack of funding for high risk ventures’….‘There’s no lack of business models, there’s a lack of market traction, because we’re all competing with free,’ she said. ‘What safe harbour and fair use has given US copyright owners is zero. Professor Hargreaves, you must be very careful what you wish for.’ Wenham wondered why Google promoted pirate sites so heavily, and why government agencies advertised the pirate sites.”

To which Hargreaves replied [disregarding the fact that the leader of AIM might actually know something about what’s happening in her own industry]: ’I don’t think the current system (of copyright) is serving you well.’  He added, ‘It is clear that in all sorts of ways that the market place for digital content in the UK is a troubled place in all sorts of ways. The Government having a Review will not be able to calm all of those waters. But what we are looking for are ideas to edge forward the ease with which markets with rights work.’”

Like excluding the enforcement of those rights by means of vauge and expansive “fair use” safe harbors.  A close cousin to the “fair use” safe harbor is “orphan works”.

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 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 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?

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.  You can read Part 2 here.

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?

Part 3: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

A One Day Symposium

If the Glushko-Samuelson Law Clinic conceived the “legislative blueprint” before the Copyright Office commenced its study, what kind of research did the Law Clinic undertake to inform its proposals? Here, in their own words, is how the authors of the plan described it:

“Since 2001, the Glushko-Samuelson Intellectual Property Law Clinic…has provided student attorneys with the opportunity…to work on important public policy projects related to important issues in the field. Clearly, the problem of ‘orphan works’ is one such issue.

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem (hereafter the CCI proposal) and has been in close contact with various non-profit organizations, intellectual practitioners and academics…”²³

A footnote on page 2 identifies the eight “clinic students” who allegedly conceived this plan. It also names three organizations whose “representatives…made significant contributions to the proposal.” ²⁴ These include two of the groups we’ve already encountered: Public Knowledge, whose president later praised the Copyright Office for proposing the plan; and the College Art Association, which two years later asked its members to flood the Copyright Office with anecdotes about orphan works “difficulties.” Of course, we shouldn’t be surprised that groups which helped draft the amendment would fully support it. But how plausibly can they argue that the “framework” they helped write between 2003 and 2005 was actually conceived by the Copyright Office only in response to a study the Copyright Office didn’t launch until 2005?

There’s nothing in the Glushko-Samuelson proposal that explains how eight law students had gained any knowledge of the dynamic $187 billion dollar licensing markets their recommendations would affect. Nor does it explain how a one day symposium attended by “non-profit organizations, intellectual practitioners and academics” could shed any serious light on the matter.  Yet the Glushko-Samuelson proposal was adopted by the Copyright Office and passed on to Congress with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office report changed that to the ambiguous and undefined “reasonable fee.”

Based on this evidence it appears that the Orphan Works bill was cobbled together by marrying the “limitation on remedies” proposed by the Glushko-Samuelson Clinic to the Creative Commons proposal that compulsory registration be imposed on rightsholders in such a way as to appear voluntary. As Creative Commons predicted, this would “move works [probably in the millions of works] into the public domain.”

These works would act effectively as start-up capital to benefit two classes of opportunists: Internet businesses, which could harvest newly-created orphans as their own property to license to others; and entrepreneurs who wish to start new commercial rights-clearance registries, clearing the rights to copyrights that have been registered with them and certifying unregistered works as orphans available for legally-sanctioned infringement. Both types of business would operate essentially as stock houses do now, channeling client contact away from creators and into their own hands.

The Myth of Market Failure

Officially, the goal of forcing copyright holders to rely on private registries was expressed benignly on page 106 of the Copyright Office Report:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector…” (Italics added.) ²⁵

But subsequently, in defending their proposal from unexpected opposition, the Report’s principal author began stating the case for registration in more coercive terms. Speaking at “Orphan Works: A Search for Solutions,” hosted by the Progress and Freedom Foundation, March 31, 2006, Jule Sigall, the Copyright Office’s Associate Register for Policy & International Affairs, explained why they had proposed stripping artists of the automatic protection afforded under current copyright law. He said it was necessary to “push” us into handing our work over to the private registries the bill would create. Artists, he said, are like cats who can’t be herded, and:

“You can’t herd cats, but you can move their food…It’s really what kind of incentives, what kind of pressure and how you put on the right pressure.” (Italics added.)²⁶

He justified such coercive measures by blaming visual artists for having failed to create such registries themselves:

“I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized.’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Italics added.)²⁷

Nothing expresses the looking glass logic of the Copyright Office proposals better than this apparent belief by the bill’s principal author that an amendment legalizing the infringement of millions of commercial copyrights is necessary so that art directors can find artists. Even a quick glance at a newsstand should dispose of that argument. There are thousands of magazines and daily newspapers filled from cover to cover with photographs and art. There are billions of images published in trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards, greeting cards, surface and fabric designs. How can anyone be surrounded by this sea of pictures and seriously argue that the trade in images is being impeded because clients can’t find artists who have failed to collectivize?

Artists were not the only ones to notice that the Copyright Office lacked any substantial supporting evidence for its Orphan Works recommendations. The Association of Independent Music Publishers and the California Copyright Conference made the same observation in a joint paper published July 15, 2008.

“The Copyright Office,” they wrote, “requested orphan works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation of how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.” ²⁸

The Runaway Scope of the Orphan Works Bill

The assertion of market failure, though entirely unsupported by evidence, took on the authority of fact when presented to Congress with the imprimatur of the Copyright Office. By the time Howard Berman, Chairman of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, opened his single hearing on the Orphan Works Act of 2008, he simply cited the premise to decree an end to an author’s exclusive right to control the uses of his or her own intellectual property.

“[W]e should correct a misnomer” [he began]. “The works we’re talking about are not orphans…The more accurate description… is probably an unlocatable copyright owner…this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.” (Italics added.) ²⁹

With this breezy introduction, the Chairman casually brushed aside Article 9.2 of the Berne International Copyright Convention, which states that “[m]ember [countries] shall confine limitations and exceptions to [an author’s] exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholder.” (Emphasis added.) ³⁰

Clearly, by redefining an “abandoned” work as any work by any author that anybody finds sufficiently hard to find, the Orphan Works bill would not limit exceptions to “certain special cases.” Since everybody can be hard for somebody to find, this definition would void every rightsholder’s exclusive right to his or her own property. It would create the public’s right to use private property as a new default position – and creating a new default position for copyright was exactly the deceptive strategy proposed by Creative Commons for “moving works into the public domain.”

The Subcommittee’s hearing lasted less than an hour and a half. No one asked why a bill that was not about orphaned work should be called an Orphan Works bill, even “for the sake of ease.” There were no further hearings on the Orphan Works Act of 2008. The terms of the bill had been decided over the previous two years during closed-door negotiations with special interest groups; and so, with almost casual indifference to facts (or the lack of them), the Orphan Works Act was introduced in March 2008 and placed on the “Rocket Docket” for swift passage by early summer. Despite its “paucity of data,” lawmakers had accepted the Copyright Office report as “a detailed study” of a crisis in commercial markets. The Trojan Horse had done its job.

Deconstructing Authorship

Peter Jaszi is a distinguished legal scholar at the Washington College of Law at American University. Along with Professor Lawrence Lessig, founder of Creative Commons, Jaszi is one of the most influential of a zealous group of legal scholars who believe that laws respecting intellectual property are based on “outdated” concepts of individualism and should be radically changed to favor common “sharing” by the public. As Director of the Glushko-Samuelson Law Clinic, Professor Jaszi could plausibly be characterized as the true Godfather of the Orphan Works bill.

In 1994, the professor co-edited The Construction of Authorship, a book of essays by various contributors subtitled Textual Appropriation in Law and Literature, in which “Appropriation” is clearly intended to mean unauthorized use. In his introduction, Jaszi spelled out his belief that in the new “information environment” created by the Internet, authors, artists and others “may require some kind of legal security [for the work they create] as an incentive to participate [in the creative process, but] they may not need the long, intense protection afforded by conventional copyright — no matter how much they would like to have it.” (Italics added.)³¹ The punitive tone of the comment is striking.

Copyright, Jaszi argued, is rooted in outdated concepts of “possessive individualism.” ³² He dismisses authorship as a “Romantic paradigm,” ³³ a vestige of the 18th and 19th centuries “in which entrepreneurial publishers…[and] entrepreneurial writers…played out their shared conviction that the ‘individual [is] essentially the proprietor of his own person or capacities’ — and thus of whatever can be made of them.” ³⁴ Most writing today,” he argues, “in business, government, industry, the law, the sciences and social sciences — is collaborative.” Therefore he objects to the fact that authorship is still being taught and treated by the law “as if it were a solitary, originary [sic] activity.”³⁵

The professor has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” ³⁶

“The first Act of this preeminent ‘authors’ rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo’s vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist’s private insecurities about his own ‘originality.’”³⁷

Note the disparaging quotes around “authors” and “originality.” Professor Jaszi appears to subscribe to the postmodern cliché that all creativity derives from the “transformative” uses of the work of others, and therefore such concepts as authorship and originality are merely covers for one writer’s “vigor” or another’s “insecurities.” There may or may not be any merit to such an argument, but if you’re a working author you might simply guess that Dickens and Hugo campaigned for copyright laws because they wanted to protect the books they wrote.

In The Construction of Authorship Professor Jaszi cites the “critique of authorship” by postmodern literary critics and complains that their theories have “gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into “deconstructing” other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, over-determined power of the author construct — with their immediate significance for law — have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” (Emphasis added.)³⁸

Or to put it into plain English, why hasn’t Congress written some debatable literary theories into US statute law? In a Content Agenda interview entitled “10 Pushy Questions,” the professor offered his own answer to that question:

“This is a society built around protection of private property and they’ve [the content industry] been very effective in persuading people that all property is the same. And if you take someone else’s property, that’s theft.  But all property is not the same; there are differences.” (Emphasis added.)³⁹

These differences, of course, refer to intellectual property, and the concept that theft of intellectual property may not be theft can indeed be traced to the French literary critics Professor Jaszi cites as his source of revealed wisdom. In What is an Author? Michel Foucault asserts that authorship is a false concept of ownership arising from a “privileged moment of individualism,”⁴⁰ a by-product of nineteenth century capitalism. He objectifies creative works as mere “texts,” a pseudo-scientific classification that can include anything from Shakespeare’s plays to “a laundry list;” ⁴¹ then he challenges the right of any legal system to treat these texts as “objects of appropriation” by anyone, including the author. ⁴² Citing the “disappearance of the author function,”⁴³ he predicts a future in which “[a]ll discourses…would then develop in the anonymity of a murmur,” ⁴⁴ and the questions one would ask about any creative work would not be “whose property is it?” but

“What are the modes of existence of this discourse? Where has it been used, how can it circulate, and who can appropriate it for himself?” (Emphasis added.) ⁴⁵

Foucault asserts that authors are no longer any more important to the “texts” they create than are their readers, and less important than the enlightened critic who deconstructs the text by means of post-Marxian analysis. In an interview published in L’Express July 6-12, 1984, just before his death, Foucault explained what he had tried to accomplish in his work:

“What did Marx do when in his analysis of capital he came across the problem of the workers’ misery? He refused the customary explanation, which regarded this misery as the effect of a naturally rare cause of a concerted theft. And he said substantially: given what capitalist production is, in its fundamental laws, it cannot help but cause misery.  Capitalism’s raison d’etre is not to starve the workers but it cannot develop without starving them. Marx replaced the denunciation of theft by the analysis of production. Other things being equal, that is approximately what I wanted to say.” (Emphasis added.)⁴⁶

Jacques Derrida, whose “propositions” Professor Jaszi also suggested should be used to inform US statute law, likewise derived his inspiration from Marx. In his book Specters of Marx, he argued that with the falling-away of state-sponsored Marxism, it’s the duty of modern intellectuals to create a “New [stateless] International” ⁴⁷ to translate Marxist thought into political action:

“Upon rereading the Manifesto and a few other great works of Marx, I said to myself that I know of few texts in the philosophical tradition, perhaps none, whose lesson seemed more urgent today…It will always be a fault not to…go beyond scholarly ‘reading’ or ‘discussion.’ It will be more and more a fault, a failing of theoretical, philosophical political responsibility. When the dogma machine and the ‘Marxist’ ideological apparatuses (States, parties, cells, unions, and other places of doctrinal production) are in the process of disappearing, we no longer have any excuse, only alibis, for turning away from this responsibility. There will be no future without this. Not without Marx, no future without Marx, of his genius, of at least one of his spirits.” (Italics in the original, underlines added.)⁴⁸

Since we now know that the legislative blueprint for the Orphan Works bill was drafted before, not after, the Copyright Office study; and since we know it was drafted by (or under the direction of) Professor Jaszi; and since there’s no reason to doubt the professor’s sincerity in his belief that the laws governing intellectual property should be altered to reflect the opinions of Derrida and Foucault, is there any reason to doubt that the legislative” blueprint” his Law Clinic drafted between 2003 and 2005 reflects this ideological agenda rather than the underwhelming “evidence” of 215 letters submitted in 2005 to the Copyright Office study?

To be continued…

23.  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 2  http://www.copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

24.  ibid

25.  Report on Orphan Works, A Report of the Register of Copyrights, January 2006 United States Copyright Office, Page 106 http://www.copyright.gov/orphan/orphan-report.pdf

26.  Jule L. Sigall, “Orphan Works: A Search for Solutions,” hosted by the Progress and Freedom Foundation, March 31, 2006. http://www.archive.org/details/PffSeminar-OrphanWorksASearchForSolutions

27.  ibid

28.  Association of Independent Music Publishers (AIMP) and California Copyright Conference (CCC) Joint Position Paper on Orphan Works Legislation, July 15, 2008, Page 2 http://www.brandaideblog.com/pdf/Position_Statement.pdf

29.  Rep. Howard Berman (D-CA), Chairman, Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives, Opening Statement: “Orphan Works Problem and Proposed Legislation,” March 13, 2008 http://www.copyright.gov/docs/regstat031308.html Video Testimony of Chairman Berman’s opening comments (requires RealAudio plug-in):
http://www.copyright.gov/video/testimony-3-13-08.html

30.  Article 9.2 Berne Convention for the Protection of Literary and Artistic Works http://www.law.cornell.edu/treaties/berne/9.html

31.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 12, Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994 http://books.google.com/books?id=dpRKltgJYYwC&printsec=frontcover&dq=Peter+Jaszi,+The+ Construction+of+authorship&hl=en&ei=1UXsS6aJFsH68AaF4NzBCA&sa=X&oi=book_result &ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=false

32.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 6 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

33.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

34.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 6 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

35.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

36.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 10 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

37.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9-10 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

38.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 8-9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

39.  Peter Jaszi, “10 Pushy Questions for Peter Jaszi and Patricia Aufderheide” This interview is no longer online, but was once available at http://www.contentagenda.com/info/CA6434467.html (This URL no longer exists)

40.  Michel Foucault, What is an Author? Text of a lecture presented to the Societé Francais de philosophie, February 22, 1969 Translation by Josue V. Harar, Page 1, http://www.scribd.com/doc/11397906/What-is-an-AuthorFoucault

41.  Michel Foucault, What is an Author? Page 3

42.  Michel Foucault, What is an Author? Page 6

43.  Michel Foucault, What is an Author? Page 14

44.  ibid

45.  ibid

46.  Michel Foucault, Interview by Pierre Boncenne, Page 113, Politics, philosophy, culture: interviews and other writings, 1977-1984 by Michel Foucault, Lawrence D. Kritzman, Alan Sheridan, Routledge, Chapman & Hall, Inc. 1988 http://books.google.it/books?id=HfWNHGCw55EC&pg=PA113&lpg=PA113 &dq=michel+foucault+%22+What+did+Marx+do+when+in+his+analysis+of+capital+he+came+across+the+problem +of+the+workers’+misery&source=bl&ots=mQRxyxhm3s&sig=Tnlz6of6aN-V_ak1vosmlpwH-MQ&hl=it&ei= dj_XS8qBE82PsAa84OScAw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAYQ6AEwAA#v=onepage&q&f=false

47.  Jacques Derrida, Specters of Marx: the State of the Debt, the Work of Mourning, & the New International, Translated by Peggy Kamuf, Routledge 1994, Page 13 http://books.google.it/books?id=sEENbAP5FZsC&dq=derrida++specters+of+marx&printsec=frontcover &source=bn&hl=it&ei=ncXYS6z1OoXdsAbur92FAw&sa=X&oi=book_result&ct=result&resnum=4&ved= 0CBsQ6AEwAw#v=onepage&q&f=false

48.  ibid