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Orphan Works: A Rant

By Georgia Harper

I went to the Grand Canyon and found a copyright dilemma. I will explain. Much has has been written about the Orphan Works bills that were introduced into Congress in recent weeks. A simple Internet search will connect you to the bills themselves and a host of opinions about them. Some copyright owners are writing that the bills will effectively mean the end of their copyrights, or at least require registration of their works with the Copyright Office. (These fears are way overstated.) Some user groups are asserting that the bills do not give adequate safeguards from infringement claims. I have another concern: The bills won't work. I predict that they will become another provision of the US Copyright Act that will languish as wasted print. In rough sum, in order for a user (you) to gain the benefit of the bill, you would have three large stages of compliance: (1) Conduct a qualified search, which various parties are trying to push as a standardized set of "best practices" and maybe even guidelines from the Copyright Office. (2) Use the work, but include some form or symbol or declaratory statement on the published use. Depending the final bill, you would also have to register the use with the Copyright Office. (3) Be prepared to respond with all legal technical procedures when a "notice of infringement" or a real live lawsuit arrives at the door. These few sentences summarize about a dozen pages of legal jargon in the bills. The payoff: Reduced monetary remedies and maybe no injunction. This is a bill for lawyers, not real people. If I were a major book publisher, I might be able to hire staff to monitor compliance and maintain active records of uses indefinitely, waiting for the knock at the door from the long lost copyright claimant. But if I am a researcher, scholar, or blogger, I am simply in no position to comply with the requirements. I am also probably not going to be very motivated by that payoff, but that is another story. Back to the Grand Canyon. I visited the Grand Canyon with the family not too long ago. After cajoling family members into several snapshots, I kindly handed the camera to a total stranger, requesting a photo of the whole gang. The stranger complied, took a picture, and handed that camera back to me. I might own the camera and stored image, but the tourist who just drifted back to Iowa composed the picture and evidently under the law owns the copyright. Now I am nervous! If I post the picture to my website or blog, or even include it in my holiday newsletter, will it eventually fall into the hands of the stranger, who still owns the copyright? Will I get a stiff lawyer letter? I do not know the name of the photographer. I have an orphan work problem! How do I begin the search? My best start might be to peruse the hotel records at the Grand Canyon Lodge from April 2004 (fat chance). If I happen to see that the tourist had Iowa plates on his car, that might help narrow the quest. Will Copyright Office "best practices" anticipate my search needs? Not likely. I have the same problem when I find a snapshot in an archival collection and want to include it in my history of the national parks. Will I do a "qualified search"? Will I place a notice on the photo alerting everyone to my risky reproduction? Am I well positioned to comply with the detailed legal procedures? My point, of course, is that the bills are hardly capturing the reality of diverse orphan works and the needs of researchers and readers who are seeking to learn from them. The bills are suited only to a small class of users and even then only to a rarefied group of works that are likely to generate true legal challenges. What to do instead? That is another story.... My rant. Kenny Crews

Full post as published by ©ollectanea on May 12, 2008 (boomark / email).