Copyright Office Announces Orphan Work Study

Federal Register announcement 70 FR 3739

U.S. Copyright Office
January 27, 2005
Issue 246

The Copyright Office seeks to examine the issues raised by "orphan works," that is, copyrighted works whose owners are difficult or even impossible to locate. Uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating them in new creative efforts or making such works available to the public.

The Copyright Office requests written comments from all interested parties on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.

Comments are due by 5:00 p.m. EST on March 25, 2005. For detailed information on submission requirements and further information, go to the Copyright Office website
http://www.copyright.gov/fedreg/2005/70fr3739.html

Orphaned Art and a Copyright Virus

To understand how a copyright virus would work, we first need to understand the concept of “orphaned” art.

Two years ago, copyright abolitionist Lawrence Lessig tried to undermine copyright protection of creative works. In the case of Eldred v. Ashcroft, the Supreme Court ruled against him. But undaunted, he is now trying again.

In Kahle v. Ashcroft, two commercial archives have recently asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. At stake are works first published after January 1, 1964 and before January 1, 1978. The Complaint asks the Court for a declaratory judgment ruling that copyright restrictions on “orphaned works”, that is, works whose copyright has not expired but which are no longer “available” to potential users, violate the Free Speech Clause of the First Amendment.

Lessig defines “availability” as the ease with which any “user” can locate or identify the creator of any work of art. In Lessig’s logic, the “need” of a “user” to exploit the work of others trumps the right of the work's author to determine when, where or if the work is exploited or what compensation is due for its use. According to Lessig, a user is entitled to expropriate the works of others because the act of expropriation is itself an act of “creativity.” And Lessig argues that where a would-be user of a work cannot lawfully exploit it because he cannot find its author, then the user's right of free speech has been damaged.

Lawrence Lessig is the founder of Creative Commons and is conducting a campaign to institutionalize “alternative” copyright licenses in as many as 60 different countries. This “alternative” license claims to define “the spectrum of possibilities between full copyright, i.e. all rights reserved - and the public domain, i.e. no rights reserved.”

A proponent of the Creative Commons License explains the strategy of the “alternative copyright”:

“Widespread voluntary adoption of this [alternative] license will render measures like the extension of copyright irrelevant... the “Share Alike” license requires derivative users to adopt a similarly open license. The greater the volume of material with this kind of license that is out there, the greater the incentive to make use of it, even at the cost of forgoing commercial copyrights. Since most commercial culture depends ultimately on unpaid appropriation of older material, the effects will be cumulative, even VIRAL [emphasis added].”

Creative Commons does not recognize works of art as the unique expression of individuals. In their logic, all “creators” build upon existing works through derivative or “transformative” uses of the work of others. Creative Commons routinely celebrates music remixers, collage makers, and film and print publishers who seek to profit by republishing with impunity the copyrighted works of others.

Consider the vast number of artistic works that appear without credit lines in print or on the internet and you can easily see how insidious this assault on copyright protection can be:

Step 1.
Declare any work of art whose author cannot be located or identified as an “orphaned” work freely available for use by others.

Step 2.
Allow the user of any “orphaned” work to embed his “new derivative creation” with the Creative Commons viral license. Now standard copyright law could become as vulnerable to the copyright virus as computers to an internet worm.

If users can have free legal access to art simply because certain authors are “difficult” to identify or locate, we will see endless opportunities for abuse. Commercial stockhouses, for example, databases and print and web publishing industries could freely gather “orphaned” images for exploitation. And the Copyright Clearance Center, which currently claims they cannot pay artists for the photocopying of their work (because they say they cannot track usage or identify authorship) would see their continued failure to pay artists legitimized.

This case could affect the life’s work of many artists now in the prime of their careers, and provide case law for the further erosion of copyright protections for all artists.

— Copyright © 2005, Cynthia Turner for the Illustrators' Partnership

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Alternative Copyright Gains Ground in Europe

“An alternative copyright that allows authors and artists to give away their
work while retaining some commercial rights is being adapted for use across
Europe and beyond.” This according to Jennifer L. Schenker, writing in the
International Herald Tribune: New Copyright Grants Artists Greater License,
June 14, 2004.

“Lawyers, musicians and filmmakers gathered in Berlin on Friday [June 11,
2004] for the German introduction of the [alternative] licenses, which were
first drafted for use in the United States in 2001 by Creative Commons, a
Silicon Valley nonprofit organization. The German debut followed the
introduction of Creative Commons licenses in Japan in March, in Finland in
May and in Brazil on June 4.

“Some 60 countries are expected to adapt Creative Commons licenses to their
jurisdiction, ‘and Germany is a critical part of that process,’ said
Lawrence Lessig, the Stanford University law professor who is the chairman
and co-founder of Creative Commons.

“Creative Commons licenses will be introduced in the Netherlands next Friday
and in France by the end of the summer, with a goal of creating licenses for
all EU countries by year-end, Lessig said in an interview by phone last
week.”

According to Lessig, these alternative copyrights will give artists greater
“freedom” to give away their work. According to the article, “Artists
choose how they want to share the work, specifying whether they want credit
for reuse, whether they want to be paid for commercial use or whether it is
acceptable to change [the work].”

Since nothing in current copyright law prevents artists from giving up their
copyrights or declining payment and credit for their work, artists may
wonder why they need new laws giving them “greater license” to do so. In
fact, the “alternative” copyright is intended to act as a copyright “virus,”
infecting traditional copyright protections throughout society. This would
give commercial access to protected works by anyone wishing to profit from
their use.

Lawrence Lessig is a driving force behind “The Copy Left,” a loose coalition
of legal scholars and internet providers, whose goal is to rollback or
abolish traditional copyright protections. They blame “the romantic notion
of authorship” for impeding the distribution of culture and inhibiting
creativity in the arts.

“Lessig is the author of “Free Culture: How Big Media Uses Technology and
the Law to Lock Down Culture and Control Creativity.” He has argued before
the U.S. Supreme Court against extending the length of time that copyrights
cover original works [Eldred v Ashcroft] and is an advocate of open-source
software, which is distributed freely on the Internet.”


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