Tuesday, May 13, 2008

More on the Orphaned Works Act of 2008

I devote a certain amount of time each day to “research”. Its’ my attempt to stay informed about what is going on in the artworld. This week its ALL about the Orphaned Works Act. I can’t help it. I’m fascinated.

What is this about, really?

It’s been suggested that this all started in 2003 with a NYT op-ed piece by Stanford Law School professor Lawrence Lessig (link here). Lessing contends that the Supreme Court decision to allow Congress to set the length of copyright protection “stifles freedom of expression by preventing the artistic and educational use even of content that no longer has any commercial value”. Lessing doesn’t seem to like the fact that there is a lot of artwork laying around out there that is not being “commercially exploited”. He also brings up the dilemma faced by museums and educational institutions when they want to produce an exhibit which includes sound or images with unknown copyright status. A possible solution he suggests is a database modeled after the US patent registry: Register each piece of artwork at $50 per entry. Registration must be renewed every 3 years*.

Eventually, Senators Leahy & Hatch requested a report from the Copyright office. The copyright office conducted a study and in 2006 released its 217 page report (get your free pdf here!). I’m only partially through it but so far it is very interesting.

The copyright office wanted to know if Orphaned Works was really a problem and if so, how much of a problem. They were pleased with public response: 850 statements were submitted. 722 of those were individuals; the remaining were aggregated comments from institutions/corporations. Later, a group was invited to a roundtable to discuss the issue. [just an observation:850 responses is all they could get? 850 is enough to alter national copyright laws?]

About the museums and educational institutions: These entities would like to display artwork and sounds of unknown copyright status. They would like to post their collection on the internet so that it is accessible to the public. They are willing to perform due diligence to find the copyright owner. In the event that the owner cannot be located, they would like to display the work anyway to educate the public and preserve our cultural heritage. Should a copyright owner surface and object to the usage of their work , these intuitions are perfectly willing to immediately remove the content. In return, they ask not to be sued. This seems to me to be a perfectly reasonable request, and shows respect for the creator. I have no problem with the request or the solution.

Now, what about commercial interests? Not surprisingly, it’s a little different and nowhere near as respectful:
“the proposal would limit the ability of the copyright owner to obtain full injunctive relief in cases where the user has transformed the orphan work into a derivative work like a motion picture or book, preserving the user’s ability to continue to exploit that derivative work. In all other cases, the court would be instructed to minimize the harm to the user that an injunction might impose, to protect the user’s interests in relying on the orphan works provision in making use of the work.” [U.S. Copyright Office Report on Orphan Works pp 11-12]
Boy, those users (vultures) sure are well protected. I wonder how many of the 850 respondents worked for Time Warner, or any other major studio?

Its the commercial usage that I strongly object to. Its that these bills not only open the doors but invite abuse. I dont have a problem with museums, libraries, researchers, art students (or any students), other artists etc. using the artworks as long as it is not for profit. But if the work is taken and reproduced for anothers profit, its theft. Period.

What about that database? Well, it turns out they looked into that as well and it will cost the Copyright Office upwards of $35 million. That’s kinda pricey for their budget right now so they don’t want to do it. Those 850 respondents were concerned about the search costs in finding copyright owners…. Maybe there is a solution on page 200 that doesn’t involve charging artists $50/image renewable every 3 years. I haven’t gotten to that page yet…

So there is a big push to get these two laws into effect quickly. Why? Well, its an election year. We get a brand new president (Yipeeeeeeee!!!) and with that brand new president comes changes. They don't want to risk possible changes to the Sub-Committee.

* I came up with what I thought was a very high figure: $10/image in my post yesterday. Lessig has since changed his figure substantially. To be fair, his point is not to establish a price but to make copyright owners more active in maintaining their rights. I see too many holes in this method to agree.

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