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How to kill an orphan works bill in 2 easy lessons

By Georgia Harper

Public Knowledge (who works tirelessly on behalf of documentary filmmakers) announced on Thursday that two bills addressing orphan works had been introduced: Orphan Works 2008: House and Senate Bills Introduced. As usual, I urge you to read the bills. Public Knowledge has links to both of them. And read Public Knowledge's assessment. You're not going to get their type of assessment here. They thank the Congressional committees, they look forward to working on the bills. They seem realistic in their assessment of the differences between the two, noting the relatively "clean" Senate version and the House version's including many additional provisions that go much further in addressing the concerns of those copyright owners who view orphan works legislation as quite detrimental to their interests. But near the end of their observations they note that

[Visual artists will] try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn?t happen ...

Hmmm. I think the bill has already been poisoned. DOA. Too late even for last rites. The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the "yes!" responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill. Ok. I've got my "horrible cynic" hat on now. Basically, the House bill appears to take the position that there is likely to be an owner who will turn up, and all the proof that you tried your best to find them has to be assembled, certified, and all the groundwork for the impending litigation laid, ahead of time. If that's not pretty poisonous, I don't know what is. But wait there's more. If the pre-use litigation-oriented requirements are not, in the abstract, enough of a deterrent, there is the opportunity for the industries themselves to erect barriers to use so high that the burdensome statutory requirements will seem like a walk in the park. They have the privilege of defining the "best practices" that the CO will install as part of what users must follow to get the benefit of using a work that, contrary to rampant fears, no one likely exists who cares about or would object to its use. This sort of reminds me of what happened to the NIH OA statute the first time around (3 years ago). We ended up with a voluntary request for posting publicly financed research results to PubMed Central, instead of a mandate, in response to fear. The voluntary approach completely failed (surprise!) to fulfill the objectives of the law, and eventually, when it was obvious to everyone, it still took a monumental fight to get a bill through Congress that was not dominated by those who were the most fearful. Copyright industry captains have been wrong a few times before about what they think change will do to their industries. And this is only round one, as Public Knowledge notes. The House bill (and the relatively more realistic Senate version) is only going to get worse, not better. My advice: if you're waiting for legislation to deal with orphan works, do not hold your breath. You'll expire.

Full post as published by ©ollectanea on April 26, 2008 (boomark / email).