There’s a new Orphan Works Bill in Town

As always, there’s good news and bad news.

There’s an immense amount of erroneous information about the new orphan works bill, primarily from certain people who are worried about their livelihoods. I don’t at all begrudge someone being concerned about their livelihoods. There are definitely some legitimate concerns about the course such a bill could take. I do begrudge hyperbole and poor analysis and the spreading of such information without any attempt at verification. I’m also not entirely happy with some interpretations of copyright law I’ve seen that misconstrue the purpose of copyright and that are flat-out wrong about how existing copyright law works, especially in the international context. That’s more understandable though, since it’s confusing. 😛

It’s not all bad, though. Although the blog world seems to have a lot of the negative talk, there are actually some civil discussions going on from and amongst these same groups.

The bill isn’t intended to be anti-artist. It’s not part of a scheme by the corporate overloads to make more money. It’s not about the government attempting to censor artists. It’s not “a license to steal.” It doesn’t reinstate registration requirement for artists. I find it fascinating that people are making all kinds of allegations about the bill when they haven’t read any version of the proposal- they’re pretty much responding to the initial messages and articles that were sent out by certain individuals and groups.

All I’m really asking is that you read the text of the bill yourself when you have the opportunity, make legitimate criticisms public, and if you think the bill isn’t satisfactory, attempt to come to a solution of the orphan works problem. Because the orphan works problem is not getting any better. That’s actually something a lot of people agree on, artists, educators, librarians, etc. alike. Reading the bills is rarely fun, but if you’re going to share an opinion, please make it an informed one. 😛

You can find pdfs of the current round of Orphan Works legislation at Public Knowledge.

Orphan works are a problem. To quote Georgia Harper

Orphan works are one of the biggest challenges we face today. These are works that are destined never to see the light of digital day unless we find a way to get them online while making reasonable efforts to protect the interests of their owners. The time when obscurity was the only option for non-economically viable works is over. We need to find ways to get on with it.

For a decent introduction to some of the issues, check out the U.S. Copyright Office’s page on orphan works. Most creative works in existence are orphan works. They’re not the ones that are making people’s livelihoods. They’re the ones people are concerned about.

Part of the issue about history, and the preservation and conservation that is necessary to maintain the cultural record. It is very, very difficult for archives, libraries, and museums to preserve certain types of materials in a usable form- particularly when they’re dealing with digital works. The proposed law provides such institutions with some protections for using orphan works. And guess what? People who work at libraries, archives, and museums are not out to destroy art or artists. Far from it.

Part of the issue is about education. We deal with these orphaned materials on a daily basis at the iSchool, and we’re heavily constrained in what we can do with them. Other departments face similar issues, although I suspect the impact on us is a bit stronger because of digitization curriculum. I might be wrong there, though.

In the text at least one version of the bill, users of orphan works also have to register their intent to use such orphan works, and also mark the use in a way that identifies the work as used as an orphan work. Furthermore, people cannot simply find an unmarked image and declare that worked orphaned. Additionally, people do have to make a reasonable search in order to use the work at all. In the case where the creator is found, there are provisions for the creator to receive payment. And woe betide the person who acts in bad faith (whom are what most of those who are maligning the bill are worried about). We all worry about bad actors.

There are burdens all around, but it’s a start.


  1. Sean Rice said,

    May 13, 2008 @ 1:08 pm

    While you do a very good job of explaining the very laudable goals of such interests as museums and conservation groups, you ignore the fact that the ‘intent’ of the law has very little to do with how a law is interpreted and practiced by those seeking advantage.You write, “And woe betide the person who acts in bad faith” but, I must assume you meant literally that God will punish the actors of your biblical near-quote, for the courts will not be able to, really.

    I did read both versions of the bill as well as the 2006 versions, which are very similar. The 2006 bill had Getty and Corbis against it and that was a big gun to have on your side to defeat a bill. Now, with their own lobbyists on the hill gaining concessions, they speak on one side of their mouth about being ‘against it’, but pay lots of money to make sure they are hurt by it.

    What business are they in? The business of using other peoples work for the lowest possible price… preferably for no price at all.

    There are several reasons why us ‘fear mongers’ fear. (1) The definition of ‘orphaned’ is that, after an ill-defined diligent search, an artist is not found. Never mind that an interested party has every motivation not to find an artist after logging a breathtaking search. (2) if the artist exists and ‘had’ a commercial interest in the work, that value is now limited to what the user would have paid, normally, and not what the artist could have charged for the exclusive use of their work: Exclusivity is the bread and butter of art. (3) Cost. (4) It violates the existing laws that artists have depended on since 1974 – 1976. (5) It disengages us, or at least is in direct contradiction with the Berne Convention, TRIPP, etc.

    I can’t imagine, since you HAVE read the arguments, why you would be so callous towards it without yourself having an interest in the outcome. There isn’t a single legal analysis I’ve been able to find that supports the bill as a boon to artists, though there are several lawyers that have written extensively against it.

    Sean Rice
    Rasa Design Studio

  2. Carlos said,

    May 15, 2008 @ 2:31 pm

    I do have some concerns about the law, but from a different perspective.

    I fail to see how the courts wouldn’t be able to punish transgressors. Copyright law has intent written into it in a number of places, statutory and cases (for example, the concept of “good faith” in some exemptions, and with the distribution of P2P systems in the Grokster case). Now, I do think that initiating legal procedures or defending oneself from legal proceedings certainly have the potential of being burdensome, particularly for individuals or groups with fewer resources, but that’s a general issue I have with the way copyright law works now.

    Allow me to respond to some specific areas-

    1) The definition of what constitutes an adequate search is still up in the air, and we need to be able to do searching in such a way that a) is fair to the artist and b) does NOT impose such a burden as to make certain uses (for example, from the libraries and museums). If you’ll look at Georgia Harper’s Collectanea post on the issue, she criticizes the House version for being overly burdensome- it would be easier to use fair use. If that’s the case, then it defeats one of the points of the bill in the first place. I would welcome seeing suggestions on how such a search should be created, because such a procedure needs to be created.

    2) Nevermind that most orphan works are not commercial, but why can’t a market evaluation take exclusivity into account?

    3) Cost for whom? The artist to make sure that no one is using his or her work? The cost for persons using orphan works? There are similar issues for everyone. There will be a cost- there always is, in terms of money and/or time- but is there a fair cost? For the artist, I would guess that something commercially significant would likely be noticed- but cost is very much an issue of concern for me as well. We also need to look at the costs involved with NOT using orphan works, and those are significant.

    4) I don’t think “violates” is the correct word. It changes the law, but I wouldn’t consider change a violation in the law.

    5) I disagree here. It doesn’t require formalities or registration or other things that are contrary to existing treaties.

    I do have an interest in the outcome of this case. I see works just about every day in our libraries and archives that will no longer exist in the future because of the orphan works problem. I’ve also seen several lawyers that have written extensively for the creation of an orphan works bill that isn’t as burdensome as the current proposals. Look at Georgia Harper and Kenneth Crews, for example.

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