[A2k] Lawrence Lessig in the New York Times: Little Orphan Artworks

[Thiru Balasubramaniam]

May 20, 2008
Op-Ed Contributor
Little Orphan Artworks
By LAWRENCE LESSIG

CONGRESS is considering a major reform of copyright law intended to
solve the problem of =93orphan works=94 =97 those works whose owner cannot
be found. This =93reform=94 would be an amazingly onerous and inefficient
change, which would unfairly and unnecessarily burden copyright
holders with little return to the public.

The problem of orphan works is real. It was caused by a fundamental
shift in the architecture of copyright law. Before 1978, copyright was
an opt-in system, granting protection only to those who registered and
renewed their copyright, and only if they marked their creative work
with the famous =A9. But three decades ago, Congress created an opt-out
system. Copyright protection is now automatic, and it extends for
almost a century, whether the author wants or needs it or even knows
that his work is regulated by federal law.

The old system filtered copyright protection to those works that
needed it; the new system regulates indiscriminately. The
Congressional Research Service has estimated that just 2 percent of
copyrighted works that are 55 to 75 years old retain any commercial
value. Yet the system maintains no registry of copyright owners nor of
entities from which permission to use a copyrighted work can be
sought. The consequence has been that an extraordinary chunk of
culture gets mired in unnecessary copyright regulation.

The solution before Congress, however, is both unfair and unwise. The
bill would excuse copyright infringers from significant damages if
they can prove that they made a =93diligent effort=94 to find the
copyright owner. A =93diligent effort=94 is defined as one that is
=93reasonable and appropriate,=94 as determined by a set of =93best
practices=94 maintained by the government.

But precisely what must be done by either the =93infringer=94 or the
copyright owner seeking to avoid infringement is not specified
upfront. The bill instead would have us rely on a class of copyright
experts who would advise or be employed by libraries. These experts
would encourage copyright infringement by assuring that the costs of
infringement are not too great. The bill makes no distinction between
old and new works, or between foreign and domestic works. All work,
whether old or new, whether created in America or Ukraine, is governed
by the same slippery standard.

The proposed change is unfair because since 1978, the law has told
creators that there was nothing they needed to do to protect their
copyright. Many have relied on that promise. Likewise, the change is
unfair to foreign copyright holders, who have little notice of arcane
changes in Copyright Office procedures, and who will now find their
copyrights vulnerable to willful infringement by Americans.

The change is also unwise, because for all this unfairness, it simply
wouldn=92t do much good. The uncertain standard of the bill doesn=92t
offer any efficient opportunity for libraries or archives to make
older works available, because the cost of a =93diligent effort=94 is not
going to be cheap. The only beneficiaries would be the new class of
=93diligent effort=94 searchers who would be a drain on library budgets.

Congress could easily address the problem of orphan works in a manner
that is efficient and not unfair to current or foreign copyright
owners. Following the model of patent law, Congress should require a
copyright owner to register a work after an initial and generous term
of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive
the full protection of copyright law. But after 14 years, to receive
full protection, the owner would have to take the minimal step of
registering the work with an approved, privately managed and
competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and
illegal to burden foreign rights-holders with these formalities. It
would not apply, immediately at least, to work created between 1978
and today. And it would apply to photographs or other difficult-to-
register works only when the technology exists to develop reliable and
simple registration databases that would make searching for the
copyright owners of visual works an easy task.

A hired expert shouldn=92t be required for an orchestra to know if it
can perform a work composed during World War II or for a small museum
to know whether it can put a photograph from the New Deal on its Web
site. In a digital age, knowing the law should be simple and cheap.
Congress should be pushing for rules that encourage clarity, not more
work for copyright experts.

Lawrence Lessig is a law professor at Stanford.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


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