The Orphan Work You Save Could Be Your Own

3 Editor's note: This president's address was deliveredat the School of Visual Arts class of 2008 commencement ceremony, held at Radio City Music Hall in New York on May 16. The subject is the orphan works legislation—formally, the Senate's Shawn Bentley Orphan Works Act of 2008 (S. 2913) and the House's Orphan Works Act of 2008 (H.R. 5889)—currently before Congress. "Orphan works" are defined as any copyrighted works whose owners may be difficult or impossible to identify and locate, as determined by the infringer after a "reasonably diligent search." The U.S. Copyright Office has proposed that Congress grant freedom to ignore the rights of the author and permit use of those works for any purpose, including commercial usage. (For further perspective, see Lawrence Lessig's May 20 opinion piece in The New York Times. In addition, AIGA is actively involved in this issue.) This is a slightly modified version of that commencement address. 

This Congress—unable or unwilling to bring to an end an increasingly unpopular war, or to provide relief for those who are about to lose their homes to foreclosure—has decided to invest its efforts in changing the copyright law as we know it, sharply curtailing the rights to your creative output given to you in earlier legislation. They propose to do this through a bill called the Shawn Bentley Orphan Works Act of 2008.

A little history:

In 1909, Congress granted copyright protection to creators for two periods of 28 years only if the work was registered and the registration was renewed with the copyright office. Since the Europeans took a more expansive view of author's rights and since the Berne Convention of 1971 expressly forbids registration as a pre-condition of copyright protections, Congress revised the law in 1976 to make copyright automatic upon a work's creation and extend copyright protection to a work for the life of the creator plus fifty years. Under this regime, every snapshot, doodle, drawing, painting or design you make is covered by copyright. No one may reproduce it without your permission. To ensure that it is not reproduced without your permission, the law provides substantial penalties of actual damages, court costs and up to $150,000 in fines for each transgression.

However, according to the U.S. Copyright Office, these protections have created a troublesome class of work: orphan work. Orphan work is work which is thought to be covered by copyright, but where the copyright holder is either difficult to find or nonexistent. These works are troublesome because they cannot be infringed with impunity.

The proposed orphan works legislation permits a user to infringe, without sanction, if a diligent search for the copyright holder was performed. Diligent search is undefined. Diligence will be defined on a case-by-case basis by the federal courts. We often hear criticism of activist judges, both right and left, but this is a legislative mandate for judicial activism. The statute is silent as to how one would diligently search for unpublished work protected by copyright. The statute asks the Copyright Office to certify an electronic database for "pictorial, graphic and sculptural works." In other words, to be safe you would have to register your work. How, and at what cost, is entirely unclear. Furthermore, since there are currently no search engines commercially available which allow you to search for images as images such a registry is doomed to failure. That foreign works are unlikely to be included is obvious. Whether such a registry violates our treaty obligations and is thus illegal will be settled by subsequent litigation or by the World Trade Organization.

Absent serious penalties for infringement, we all know what will happen. The unscrupulous will infringe with impunity, as relief must be sought in the federal courts, where the costs of filing will exceed any reasonable expectation of recovery. The reasoning here is particularly benighted. You would be entitled to recover as damages the fair market value for a license for the infringed work. The presumption, however, is that since you have not already sold the work it has no value, so no damages. All of those embarrassing photos you take of each other using cell phones which end up on random websites would now be fair game for exploitation by commercial interests.

Although the legislation provides for a "bad faith" exception to the waiving of penalties, demonstrating bad faith in a legal context where you have the burden to so prove is almost impossible without extended and expensive discovery, which is foreclosed in any event without initial showing of bad faith.

The Copyright Office is convinced that orphaned works are a serious problem because they received 741 responses to their request for comment. Although only 24 percent of these responses addressed what the office itself thought was the orphaned works problem, they nonetheless conclude, "there is good evidence that the orphaned works problem is real and warrants attention, and none of the commenters made any serious argument questioning that conclusion." In other words, those who believe there is no problem are defined as not serious and dismissed out of hand.

As a gauge of seriousness, when the Federal Communications Commission tried to change ownership rules to allow further media conglomeration—a serious problem—it received millions of negative comments. Why, then, would Congress be solving such a minor problem in such a sweeping way?

In a footnote on page 37 of the report, it was noted that Google "plans large-scale commercial uses" of the kinds of work that would normally be found in uncatalogued archives. Furthermore, the Act provides specific exceptions for nonprofit educational institutions, libraries and archives. However, the term "archives" is not qualified by the term "not-for-profit." Some of the nation's largest archives of photographic material are in private and/or corporate hands, and these organizations would be exempt as if they were operating in the public interest rather than in their own private interest.

What Congress should be doing is building a more robust definition of fair use and public domain. But such robust definitions of fair use and public domain—which allow for the free flow of information, the alleged rationale for the Orphan Works Act—do not serve commercial interests. This is yet another instance of large corporations being able to override the rights of individuals.

If any of this has piqued your interest, you can check on what I have said by searching the term "Orphan Works Act" and see if I've gotten it right.

If you think I have, I would urge you to call, email or fax your congressional delegation and ask them to vote your opinion on this issue. You can also go to GoPetition.com and sign one of the petitions stating your position.

After all, it is your work—only you can protect it.