Misinformation abounds regarding "Orphan Works and Mass Digitization" - Changes may be coming to copyright law

Game lawyer Zachary Strebeck looks at some of the hyperbolic opposition to the Copyright Office's proposals regarding orphan works and mass digitization. No, the sky is not falling.

An issue was brought to my attention recently by a friend of mine, who was alarmed by a YouTube video and some articles discussing the repercussions of a proposed copyright initiative, the Orphan Works and Mass Digitization report and subsequent request for comment.

From the opening moments of the video, the tone is serious. Check out these quotes:

“This week might be be the most important in every artist’s life.”
“It will change copyright law as you and I know it.”
“…to replace all existing copyright law.”
“It will take away our inherent right to everything you and I have created, are creating, and will create.”

Holy crap. Then Brad Holland gets on the interview.

“A number of provisions that would drastically change the nature of copyright itself.”

He explains how the US Copyright Office is basically going to privatize copyright registration and force artists to register multiple copyrights for every piece of work they’ve ever or will ever create.

This post is pretty long, but there’s a lot to talk about on this issue!

Wow. This is really serious, right?

Guess what – it’s not nearly as bad as you might think, and this kind of talk is disingenuous at best and extremely harmful at worst. 

Brett at Graphic Policy breaks it down well. Please read this. Seriously – go read it now.

I’ll give my opinion on the two major issues in the proposal – Rights Management Organizations to handle mass digitization, and Orphan Works.

Rights management organizations

Brad Holland evokes a shadowy world where private companies are stealing money from artists’ pockets through backroom deals with faceless corporations.

The real issues here have to do with the contracts that are in place between the artists and their employers. If you’re creating art for a company, you should have a contract that dictates what rights you have to compensation for creating that art. Sometimes you get a royalty from any money that’s made when that artwork is exploited by the company. Other times you basically get a flat fee with no further rights. It all depends.

Brad Holland evokes a shadowy world where private companies are stealing money from artists’ pockets through backroom deals with faceless corporations. However, if an artist has created work for a company, their contract should deal with these potential royalties. If the original contract did not address digital exploitation of the work, the artist may be out of luck. But to pin the blame on these rights management organizations is missing the point. 

For many parties, including smaller artists and those who wish to make use of the artwork in new works, having copyright licensing managed by these organizations is a huge blessing. It streamlines the process for having to get a license to multiple works (exactly what the Copyright Office said was their aim in the pilot program). 

The music industry has had Performance Rights Organizations to handle this kind of thing for a long time. The major players are ASCAP, BMI and SESAC. These allow those who want to license some music to do it easily, while those who don’t want to be involved can opt out. It seems to be working well, as the music industry continues to chug along and make money. Why not do something similar with visual arts?

The proposed opt-out system

Of course, if you don’t want your work included in these organizations, you simply opt out of it. Read what the Copyright Office’s report on the subject has to say about their proposal:

“To encourage further dialogue among stakeholders, and to assist Congress, the Copyright Office has proposed in this Report a statutory framework known as extended collective licensing (ECL), which can be used to authorize projects on terms set forth by the parties under government supervision. Under this model, licenses are issued and administered by collective management organizations (CMOs) representing copyright owners in particular categories of works. 

CMOs would be authorized by the Copyright Office to issue licenses for mass digitization projects and to collect royalties on behalf of both members and non-members of the organizations, based on transparent formulas and accounting practices. All rightsholders would have the right to opt out, and procedures for doing so would be clear and unencumbered. 

The framework thus would seek to eliminate the practical impediments to mass digitization by creating a centralized, market-based mechanism for the clearance of rights and the compensation of copyright owners. It also recognizes that no licensing entity has or will ever have the full portfolio of rights that are implicated by mass digitization projects.”

So if you actually read what is proposed, you can see that it isn’t stripping anyone’s right away or fundamentally changing copyright law.

So if you actually read what is proposed, you can see that it isn’t stripping anyone’s right away or fundamentally changing copyright law. It is simply giving those who want to be paid through these collective licensing agencies the chance to do so without further effort. It allows those who want to use large amounts of works the ability to license them easily. If you create works that you believe you want to license out on your own, then you opt out. The report is mandating that the procedure be “clear and unencumbered.”

Of course we don’t know exactly how this will play out. But until something truly onerous comes around, I don’t believe that misrepresenting the entire situation is the way to go.

The fact that you have to opt out, rather than opt in to these organizations may be a big deal. However, this important point is lost in the tsunami of hyperbole about the end of copyright as we know it. Please, if you believe that it should be an opt-in system, make your voice heard in the comments.


Orphan works

Regarding these orphan works, which are copyrighted materials that others cannot or have extreme difficulty in locating the copyright owner, Brad Holland had a reply to Graphic Policy’s post:

“The heart of its report is a resurrection of 2008’s failed Orphan Works Act. That bill called for a return to copyright registration for every picture an artist wished to retain the rights to. Of course, registration would not actually protect your work – an infringer could still infringe you. But by registering it, you would at least preserve your right to sue in US federal court – if you could afford to.

Unregistered pictures would still be yours and in theory, clients would still have to get your permission to use them. But whenever an infringer concluded that he had made a “reasonably diligent” but unsuccessful effort to find you, then he could infringe your work as “orphaned.” In that event, he would have to pay you only if you caught him, tracked him down and agreed to accept whatever money he was willing or able to pay you.

The Copyright Office has even suggested that there should be an orphaned symbol (similar to a © mark) placed on each newly-orphaned image. That would signal its availability as free art to other infringers. Some have called this a “come-and-get-it” symbol.”

So what about this?

The status quo

The chilling future that Brad outlines in this portion of his reply is essentially how things are right now.

The chilling future that Brad outlines in this portion of his reply is essentially how things are right now. Registration is required to actually protect your work? Check. Infringers can still infringe no matter what? Check. You need to catch someone who is infringing your copyright and track them down in order to sue them? Check. All of that is going on right now.

In fact, one of the issues he brings up, the cost of suing an infringer in federal court, is one of the issues that the new copyright law and the Copyright Office are looking to address: Copyright Small Claims. This innovation would be extremely helpful to those who don’t have a case worthy of a federal lawsuit and I look forward to its addition to copyright law.

Also, you should be putting a © symbol on your work anyway, for a few reasons. It gives notice of the fact that someone is claiming copyright over that work. If you do the full notice, © 2015 Zachary Strebeck, all rights reserved, then you have no danger of it becoming an orphan work. 

In the absence of that, yes, the new rules would force those who want to use orphan works to do a diligent search for the copyright holder. If you actually read the proposal or the report, you can see that it gives some guidance on what that would entail. It starts on page 56 of the report, so check it out.

“A search is considered to be “diligent” if users search or utilize: (1) Copyright Office online records; (2) reasonably available sources of copyright authorship and ownership information, including licensor information where appropriate; (3) technology tools and, where reasonable, expert assistance (such as a professional researcher or attorney); and (4) appropriate databases, including online databases. Each search is mandatory only to the degree it is reasonable under the circumstances.”

That sounds like there is a lot of work that someone would have to do before making use of orphan works. Here’s more:

“Users, however, cannot rely solely on a lack of identifying information; instead the user must undertake the most comprehensive search possible in light of limited information, because a lack of identifying information does not excuse a user from conducting any searches.”

Hmm, so if someone claiming that a work is an orphan work only did a search of the copyright office records and found nothing, they aren’t excused. They would have to do more searching (on online databases) or engage a professional to assist them (such as an attorney). 

Brad argues that this system could be abused. Sure, everything has the possibility of abuse. It is impossible to remove that. However, the procedures outlined here seem to be robust and able to eliminate most abuse. Of course, it would depend on other procedures, like the copyright small claims procedures, to make it feasible for someone to actually recover on this issue.

There’s a way to advocate against bad legislation. But misrepresenting things is not the way. A nuanced situation requires a nuanced discussion of the facts. I hope that, moving forward, artists can engage in such a discussion without scare tactics and conspiracy theory.

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