Copyright Office Wants Your Feedback On Its Flawed Solution for the Orphan Works Problem
Tomorrow morning’s link post is going to include a link to a Boing Boing post on the comment period for an orphan works proposal being put forward by the US Copyright Office.
Since I myself was vague on the background and seriousness of this issue (and since Boing Boing lacked sufficient details), I thought it would be worth our time to round up a few links as a refresher.
Let’s start with the most basic detail. What is an orphan work?
According to Wikipedia:
An orphan work is a copyrighted work whose owner is impossible to identify or contact. This inability to request permission from the copyright owner often means orphan works cannot be used in new works nor digitized, except when fair use exceptions apply.
Orphan works are a known side effect of our existing copyright laws. Between long copyright terms, automatic copyright protection, and the lack of a registration requirement, current copyright law was almost intended to result in works that have no known owner.
Whether the copyright holder died, lost control of a work in a messy legal dispute, or perhaps was never known in the first place, orphan works are a serious hassle to anyone trying to use a work legally.
Several attempts have been made to address this issue, both by non-profits and by the US govt. (The HaithiTrust is one such project.)
The last time the US govt tried to address this issue was in June, when the US Copyright Office released a report on orphan works. The report looked at past attempts to fix this issue and made proposals on what to do about it.
In Techdirt’s view, it’s because the proposal doesn’t address any of the three defects I mentioned above. Instead:
The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users to "register" their use of orphaned works with the copyright office.
Think about that for a second. Rather than fix the actual problem by requiring registration by the copyright holder, the Copyright Office is recommending, instead, that the user have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together.
One problem with Techdirt’s alternate proposal is that it will not fix the current orphan works problem, but will instead prevent future orphan works. And so Techdirt hasn’t shot down the Copyright Office’s proposal so much as they pointed out that the proposal was incomplete.
Also, Techdirt ignored the several details that in my opinion the proposal got right (see the summaries for more details).
In any case, if you want to comment on the US Copyright Office’s proposal, you can find more details on Boing Boing.
But before you go, here are the links I just mentioned:
- Orphan works in the United States (Wikipedia)
- Orphan Works & Mass Digitization PDF (copyright.gov)
- US Re-Enters the Orphan Works Debate (The 1709 Blog)
- Don’t Believe the Hyperbole, There’s No Orphan Works Law Before Congress (Updated) (Graphic Policy)
- Letter PDF (archivists.org)
- Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself (Techdirt)
image by gaelx