Orphan Works: The Big Internet Factor

On Thursday October 2, each member of the House of Representatives received the following letter:

October 2, 2008

Dear [Member of Congress],

As lawmakers struggled Friday to prop up private financial institutions that are “too big to fail,” the Senate quietly passed a bill that would allow a few giant internet firms to swell by absorbing copyright titles from independent creators, small businesses and average citizens around the world. As Market Watch reported Sept. 29: While members of Congress were focused on an economic rescue package, “internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory.”

We are writing to express our grave concerns about this. The Senate Orphan Works Act (S 2913) was passed Friday by the controversial practice of “hotlining” and referred to the House Judiciary Committee. We’ve been warned that the House may abandon its own bill (HR 5889) and adopt the Senate’s. If that happens, this legislation will negatively affect artists, writers, photographers, songwriters, musicians, performers, craft and folk artists, Native American artists, in fact, creators of all disciplines, professional and amateur, both in the U. S. and worldwide.

We believe these bills mask an effort by Big Internet companies to profit by undermining existing global intellectual property rights protections. These protections currently allow small creators to control the use of their art, photographs, writings, videos or music. The proposed legislation would undermine these protections in two ways. First, it would remove any effective penalties for copyright infringement wherever a user is unable to locate an author by a vaguely defined “qualifying search.” And second, it would “pressure” copyright holders to subsidize the start-up of privately owned commercial databases by exposing to potential infringement the work of any copyright owner who does not provide these databases with access to his commercial inventory, metadata and licensing information. Since no rational business owner would voluntarily turn over his business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners.

Undermining Small Businesses
The lobbying efforts to promote this legislation pit small entrepreneurs and artists of all kinds against some of the largest and most well-financed Internet powerhouses in America. One in particular will serve to document our concerns. Google, one of the largest backers of the legislation, has already stated their intent to profit from the works the bill will orphan. In 2005, three years before the current legislation, Google told the U.S. Copyright Office “[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range....”[1 Footnote]

In March 2005, Google’s top lobbyists submitted comments to the U.S. Copyright Office’s Orphan Works Study. In it, they argued: a.) Orphan Works “represent an untapped wealth of information that should be made accessible to the public”[2 Footnote] (presumably through Google’s search engine and advertising programs); and b.) owners of orphan works could more effectively monetize their creations if they “enrolled in [Google’s] publisher program, and could receive money from advertising revenue.”

Google also commented that the Copyright Office’s current registration database, which covers works registered after 1978, does not provide contact information for locating copyright holders, adding: these records are not “readily queried through automated means.” Google sees this as a problem: it means a user looking for a copyright holder would have to conduct a routine search of records using traditional sources of information -- sources Google does not own or control. Such diligent traditional searches do not conform to the rapid automated searches that fit Google’s “one million works” goal.

In making this argument however, Google’s lobbyists presented the case as if certain procedures were not already in place at the Copyright Office. Google proposed that orphan works data “be accessible and searchable by automated means as well as through a web browser or other methods.” But in fact this system already exists for works registered after 1978 (see Copyright Office Circular 22). And Google suggested that any work designated as an orphan by one infringer should be free for others to infringe in good faith, without risk of liability.

Based on these comments and on Google’s subsequent lobbying efforts, it is obvious that Google believes passage of the current orphan works legislation would allow it to harvest millions of copyrighted works free from potential liability. Indeed it would even allow Google or similar companies to capture orphaned copies of any individual’s works, alter the works slightly to create “derivatives,” then copyright the derivatives as their own intellectual property. These companies could then add that work to their massive commercial databases and profit by licensing it to third parties - or by providing free access to the public in return for advertising revenues. In effect, we fear this bill would force creators to subsidize potential competitors by supplying them with the content they would need to compete.

No Economic Impact Analysis
It’s troubling to us in the creative community that anyone would seek to impose these measures on the $187 billion licensing industry. But equally disturbing is the surprising $3 million contribution Google made to the Library of Congress for its “World Digital Library” project in November 2005. This donation was made just as the Copyright Office was concluding its Orphan Works Study and preparing its final report to Congress. [3 Footnote]

As you know, the Library of Congress oversees Copyright Office activities. And while the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest and perhaps only private sector contributor.

Then in early 2006, only a few months after Google’s donation, the Copyright Office submitted its Report on Orphan Works. In it, they recommended changes to copyright law that would dramatically affect commercial markets. Yet the Copyright Office had studied the specific subject of orphaned work. They did not solicit, nor did they receive, relevant information about the workings of commercial markets. This fact was summarized in a joint position paper published July 15, 2008 by the Association of Independent Music Publishers & the California Copyright Conference:

“In 2004, The Copyright Office initiated a theory, with the enthusiastic support of the anti-copyright lobby, that the public was being harmed because it did not have enough current contact information for authors and owners. The Copyright Office then requested orphan works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation of how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.” [4 Footnote]

Despite this lack of information about commercial markets, the Copyright Office asserted they had found a widespread “market failure” and recommended sweeping changes to copyright law. The changes included many that Google had asked for.

Google’s special interest in this issue should not be overlooked. In March 2007, the company filed a mandatory 10-Q Filing with the Securities and Exchange Commission in which they acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business [italics added].”[5 Footnote]

Google’s involvement surfaced again March 13, 2008, when the Register of Copyrights, Marybeth Peters, testified before the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. She strongly endorsed the current legislation and recommended that private technology companies play a role in ensuring “best practices” in the creation of orphan works registries. She acknowledged a December 2007 technology briefing for Congressional staffers hosted by the Copyright Office, which Google attended to showcase tools and services to “help alleviate the orphan works problem.”[6 Footnote]

We find it deeply disturbing that the U.S. Copyright Office has so clearly and unambiguously advocated legislation that will privilege large commercial interests such as Google at the expense of creators and the countless small businesses that serve, and are dependent on the creative community. We find this even more troubling in light of Google’s substantial contribution to the Library of Congress at a time when the Copyright Office was preparing its Orphan Works recommendations -- and at a time when Google had acknowledged to the SEC that its financial well-being is dependent on a business model that has already engendered multiple lawsuits for copyright infringement totaling billions of dollars.

Google and other large database, advertising and search engine companies clearly have a major financial stake in the weakening of copyright law through new legislation. The Orphan Works Acts, if enacted in either of its current forms, would solve the problem that has vexed so many start-up internet companies: how to make money by giving away free content. By opening the door to potentially billions of “permitted” infringements of protected copyrights, this legislation would allow Big Internet to create an entirely new business model, by licensing content they don’t have to pay for — through the digitizing, archiving and monetizing of the intellectual property of ordinary citizens.

A Bill Too Far
We believe the proposed Orphan Works lelgislation, as written, go far beyond current concepts of Fair Use. As Chairman Berman of the House Subcommittee on the Courts, the Internet and Intellectual Property acknowledged on March 13 2008, the term orphan works, as applied to this legislation, is actually “a misnomer.” In fact, these bills are not designed to deal with the use of true orphan works by museums, libraries and archives. Instead they seek to grant any potential user the right to use any work by any creator for any purpose, so long as the user finds it sufficiently hard to locate the user – a standard so broad it would re-define the meaning of copyright itself. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder. The consequences will be far-reaching, long lasting, perhaps irreversible and will drastically affect what it means to create and own intellectual property. In addition, it could disrupt trade relations with rights holders in Europe, who are fearfully protective of their works’ copyrights.

On August 8, 2008, The Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. This was the first effort to assess the economic impact of this legislation on the creative community. [7 Footnote] Panelists agreed that it would drastically change copyright law, and stressed that the high cost of compliance would be a prohibitive burden for artists to bear, thus exposing valuable inventories to commercial infringement. All agreed that the bills would have a profoundly negative impact on creators’ rights and markets.

We also note that on August 30, 2008 leading copyright scholar Jane Ginsburg of the Columbia Law School published Recent Developments in US Copyright Law: Part I – “Orphan” Works.
<8> In this scholarly article, Professor Ginsburg raises several critical questions about the legislation, noting that certain provisions appear to violate Article 10.1 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She states that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works; and she adds that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.”

As small business owners, sole proprietorships and individual creators, we lack the promotional and lobbying muscle of Big Internet companies. But as we spend our own time and money to call attention to the defects of the current legislation, we stress that we would support a bill that precisely defines the category of true orphan works and sets a proper bar for making the requisite showing of due diligence by potential users. But we believe the broader interests of society are served best, when those exceptions are limited to “certain special cases,” as defined both by Article 10.1 of Berne and Article 13 of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). As Professor Ginsburg notes in her article: “The ‘progress of knowledge’ to which US copyright aspires is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.”

In the interests of continuing conditions conducive to creativity in the US – and on behalf of millions of small creators, small businesses and average citizens, we respectfully urge members of the House not to adopt the Orphan Works Act of 2008 (H.R. 5889), nor to adopt the Senate version S2913.

Sincerely,
Brad Holland, Artist
Co-Founder, Illustrators' Partnership of America

Cynthia Turner, Medical Illustrator
Director, Illustrators' Partnership of America

Constance Evans, Artist
Executive Director
Advertising Photographers of America

Gerald Colby, Writer
President, National Writers Union

Kathleen Bitetti, Artist
Executive Director, Artists Foundation

Don Schaefer, Photographer
Co-Administrator, pro-imaging.org

Nick Anderson, Editorial Cartoonist
The Houston Chronicle
Immediate Past President
The Association of American Editorial Cartoonists

Jeff Keane, Cartoonist
President
The National Cartoonists Society

Ted Rall, Cartoonist
President
The Association of American Editorial Cartoonists

[1] http://www.copyright.gov/orphan/transcript/0726LOC.PDF

[2] http://www.copyright.gov/orphan/comments/OW0681-Google.pdf

[3] http://www.loc.gov/today/pr/2005/05-250.html

[4] http://www.brandaideblog.com/pdf/Position_Statement.pdf

[5] http://investor.google.com/documents/20070331_10-Q.html

[6] http://www.copyright.gov/docs/regstat031308.html

[7] http://videos.cmitnyc.com/asip.html

[8] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361