Art Space Opinions: Public Knowledge and the Orphan Works Bill

I recently contacted Alex Curtis about the Orphan Works bill. Alex is the Director of Policy and New Media for Public Knowledge. Public Knowledge is a Washington, D.C. based public interest group working to defend citizens’ rights in the emerging digital culture. The first priority of Public Knowledge is to promote innovation and the rights of consumers, while working to stop any bad legislation from passing that would slow technology innovation, shrink the public domain, or prevent fair use. My hope is that we can have a civil debate about the bill. Do you support it? Are you against it? What are your concerns? Feel free to comment.

Brian Sherwin: Alex, you are involved with www.publicknowledge.org and you support the Orphan Works bill. As you know, there has been much confusion about this bill. Can you briefly tell us about the bill as you understand it? Also, why do you support it?

Alex Curtis: First, thank you for the opportunity today to discuss this (unfortunately) controversial topic. I very much appreciate it and I hope we can start a dialogue. I hope not to offend any of your readers with my different point of view, but I'd like to state things as clearly as possible to make sure we're all talking about the same thing. So, orphan works. Let's start at the beginning.

To use someone else's copyrighted work, generally you must ask the owner's permission. Because the term of a copyright lasts so long today (generally 70 years after the owner has died, or 95 years from publication if the owner is a corporation), it's quite possible an old work you might find today is still under copyright, even though the owner is dead or has gone out of business. That leaves millions of works, many of historical significance, unusable because no one can find the owner to ask permission, and the law requires permission. Those works without owners have been called "orphan works." The target of orphan works policy is those kinds of works, for which no owners exist. We have and continue to work to make sure current artists are found, so their works are not used without permission, and I'll hopefully tell you how later.

The aim of orphan works policy is to allow someone to use a work, whose owner can no longer be found, under some narrow but necessary conditions:

1. The user has to know the owner cannot be found by conducting a "qualifying search" for the owner. What "qualifying" entails, I'll get to a bit later;

2. After a search, if an owner is found or emerges, the user must negotiate with the owner in good faith to determine reasonable compensation for the use;

3. If a search is conducted and no owner is found, the user may use the work and avoid any statutory damages or injunctions for his infringement. In the unlikely event that the owner returns even after a search, go back to #2;

4. If a user's search was a sham or wasn't diligent enough and the user used the work anyways, when the owner returns, the user can be held liable for plain ole' copyright infringement.

Public Knowledge supports orphan works policy because we believe it introduces some common sense back into copyright. If a creator is long dead and gone and there are no discernible heirs or transfers of the copyright, what is the justification for no one using the work? Entire generations may never see that work because it hasn't yet fallen into the public domain because of the length of copyright. Even worse, that work could deteriorate before it falls into the public domain, and thus lost forever.

Lastly, I've heard artists concerned that their work would be "dubbed an orphan" or "declared an orphan," but that's not how the legislation works. Yes, the legislation proposes that when someone uses an orphan work that they designate it with a special mark, but in effect that work is only considered an orphan for that specific use. Each and every person who would like to use a work must conduct a new of their own search for the owner. They cannot rely on someone else's previous search, because that search may be out of date or that person may not have had the tools available to find the owner at the time. Just because one person couldn't find the owner today, doesn't mean that she can't be found tomorrow by someone else.

BS: What about negative consequences of the Orphan Works bill? Do you have any concerns at all about the bill? For example, many artists and art advocates take the position that if the Orphan Works bill is passed it will give unfair rights to individuals and companies in that they can continue to use images even if the artist who created the image comes forward. Thus, if an artists work is being used for a cause he or she does not support his or her opinion will not matter even if it is damaging to the artists career and social standing. Artists are concerned that they will not be compensated or have the ability to halt the use of their art in this scenario. What say you?

AC: I understand that there are many artists, especially those who create visual art, who are very worried that orphan works policy will let anyone copy their works. I've talked with and written to many artists who make their livelihood from their creativity, and believe it or not, everyone that I know working on orphan works policy is fighting for your ability to create and succeed. I have taken to heart many artists' concerns since Congress first proposed a study of the problem back in 2005, and we've tried to work with artists to address these problems.

One problem that I don't believe the bill sufficiently addresses is the problem of copyright registration. I'm not talking about visual registries, as we will in one of the questions below. Instead I'm talking about the current system. Visual artists especially find the registration process expensive and tedious, and worse yet, those who use it still cannot be found, online or otherwise. We want to make sure owners that exist today are able to be found, so they can be paid for their work and no one can claim that their works are orphans.

The concern you raise above, where an owner's work could be used for something that she does not stand for, or in a way that she doesn't agree with, is one I understand that some artists are very worried about. I do not want to dismiss this concern out of hand, but there are some incorrect notions I want to dispel. First, nothing in orphan works policy gives the user of an orphan work copyright rights in that orphan work. The user of an orphan work is called an "infringer" under the law. Period. There is no transfer of rights, even if the user did a qualifying search. Second, I've read suggestions that artists would be in breach of their exclusive rights licenses because orphan works policy allowed someone else to use their work. It's just not true. Infringers are infringers, and their use would not legally interfere with an exclusive contract between the owner and a licensee. Just as you, as an owner, would have no control over whether someone infringed your work, likewise you have no control over whether someone used your work as an orphan--both are infringement.

Also to address your question, I've heard the "the toothpaste was already out of the tube" scenario: once someone uses your work as an orphan, that it's too late because the infringement has already happened. I understand the concern here, but please bear with me while I try to explain why this has nothing to do with orphan works. Today, once someone infringes on your copyright, it has already happened and the toothpaste is already out of the tube. That user would be an infringer. The infringement happened without you knowing and there's nothing you could have done to stop it. He used your work without even bothering to look for you to ask your permission--probably because he never thought you'd find out or because he was too lazy. But that's the case even without orphan works, and there's nothing, besides court awarded damages, that could address it.

At least under orphan works policy, that same user would be required to have searched for you and if he still didn't find you and he still used your work, you would be reasonably compensated for that use. If he doesn't do those things, you're in the same spot as with a regular infringer. Additionally, if the infringer claims he did a search for you, he's got to show it to you up front, which will make it easy for you to determine whether he's a fraud or good-faith user so you can begin negotiating compensation.

Next, if someone uses your work as an orphan work after a search, but just copies it and doesn't add any value or include it in anything with their own original expression, then you could restrain, or obtain an injunction for, their future use. And you would be reasonably compensated for the use.

As for continued use of a work, if the orphan works user used the work in such a way that "recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer's original expression..." the user can keep using the work but must pay the owner for that use, and give attribution to the owner if the owner so desires. I've heard concern that somehow large corporations are going to claim orphan works as a way to somehow get a "discounted" license fee. I don't see how this is possible. If the user is some big corporation, reasonable compensation is going to have to reflect that. Compensation would also have to take into account how the work was used for it to be reasonable--including the context of the use, to take care of the potential controversial cause or damage to the artists' reputation. I would think that every corporation would want to find the owner and license the work up front, because if they spend the money to conduct the search and still come up empty handed, there's still the possibility that they will have to compensate an owner if she emerges. Every orphan works owner has every incentive to find the owner, because they know they will have to pay for their use when an owner returns.

Sorry that was a long answer, but there were a number of overlapping issues and I wanted to try to keep them all separate.

BS: My understanding is that if the Orphan Works bill is passed artists will have to pay to be placed on online registries affiliated with the government in order to make sure that their copyrights are protected. Right now works of art have basic protections upon creation with no cost involved. Thus, many artists feel that if the bill becomes law they will have to pay for protections that are free at this time-- they will have to pay in order to own the rights to their own art. What are your thoughts on this?

AC: No, no, no. There are a lot of misconceptions about this, so let us first forget about orphan works and talk about the law today.

Today, you write down your original creative thought and it's copyrighted. That's it. No registration is needed for it to be copyrighted. Let's say that your creation is important to you and if someone were to infringe it, that you'd want to sue them to the greatest extent possible. If that's the case, the law allows for what's called "statutory damages" and those can amount up to $150,000 per infringement. To make statutory damages available to you, you have to register your work with the Copyright Office within three months of publication. If you don't, you cannot claim statutory damages.

It should also be said that, today, if you want to enforce your copyright in a court, you must register your copyright with the Copyright Office before you do it. This does not apply to foreign copyright holders, however (that's a topic for another time). In this scenario, statutory damages are not available to you, only "actual damages," which is essentially the economic harm that is sustained by the infringement. In many cases, "actual damages" is what you might have agreed to had you negotiated before the infringement. This is why I always tell artists that to the extent feasible, register your copyright so you have access to the higher statutory damages. That's what the big guys do, but they have deep pockets.

Under orphan works, nothing with regards to registration changes. Period. You don't have to lift a finger for your work to be copyrighted, in the same way you don't today.

The talk about "visual registries" or "online databases" that you might have heard with orphan works, are all efforts to try to make it easier for artists to be found. When I said above that we've been listening to artists, we have. Artist, especially visual artist, have complained that a big reason why they cannot be found is because the Copyright Registry isn't very useful to them. They don't register their works because it's very expensive and time consuming. It even costs a lot to register a change of address. Additionally, the Registry's online search only returns text results. So, if you're a visual artist, if someone searches the online registry for your work but doesn't know your name or textual information about the image, they have no way to compare that image they have in hand to any record in the registry--not a single record in the online registry displays a picture. To see a picture, the potential user would have to physically come to Washington, DC to search the records by hand, or pay someone to do it for them.

The registration of groups of images compounds the problem. Finding the image your looking for is hard enough, but with group registrations, even if you knew the artist, you'd have to sift through contact sheets of many small photos that can be submitted as a way to save on filing fees. This makes it even more difficult for a user to find the image that they're looking for, even if they have physical access to the registry.

So, hearing these problems, we suggested to the Copyright Office that their system needed an overhaul. It needed to allow for online registration, for online searches that produced images, and visual recognition technology to allow an orphan to be matched against images in the registry. The Copyright Office said it had neither the money or expertise for these updates.

If government was going to fail us, maybe the market would help to fill the gap. We suggested to policy makers that we should send up a flare to the online market that these services should exists to help owners and users. The Copyright Office could certify them, to make sure they met minimum quality standards.

Despite what you may have about orphan works, the use of these services would be entirely optional for copyright owners. Using these services as search tools for finding orphans would be required for users, though. We proposed these services as a way to improve the status quo--to help visual artists be found. If visual artists choose not to use the tools, it may be harder to find them--but the search must still be conducted, whether or not a "Google Search" returns the photo they're looking for.

As a point of clarification, it should be noted that using these services would not allow an artist to claim statutory damages in a court of law. We are suggesting that the Copyright Office allow more online services to access the Copyright Registry, to make it easier and cheaper for owners to "officially" submit their works. But we're not there yet.

BS: I've also read that some artists are concerned that they will not be able to afford to protect their works or that they will have to be selective as to which images are protected based on their financial difficulties. As you know, the majority of artists are not exactly wealthy. I've met hundreds of artists who have to work two jobs in order to support themselves as well as their creative aspirations. There is a growing concern that some artists will no longer post images online if the bill is passed due to those fees and the inability to pay in order to secure their art. What are your thoughts on this?

AC: As I said above, nothing in orphan works requires any artists to spend any additional money to register their works--whether that be at the Copyright Registry or with some online service. That said, we would like to see solutions arise in the market to make it easier for owners to be found, and maybe even register their works more cheaply. Digital technology should make things cheaper and more useful.

When I talk about these services, I think about sites like Flickr.com that allow anyone to upload as many images as they want for free. You get some added features as well as unlimited uploads for $25 a year, as compared to the cost of registering one of your works at the Copyright Registry: $35 per work. That's a huge cost difference, all because it's online and digital. Other services, like TinEye.com, search and index sites like Flickr and let you compare one image against the entire index. They do this for free. Some of these services may charge a minimum fee for an account like Flickr's "pro account", or require payment for using the search function, or no charge for any of it. They may provide additional services, like ways to help owners license their works, or print their works, etc, to offset the costs of their "registries."

Artists, established or struggling, would not be required to use any of these services under orphan works. Period. Nothing is required, and just because you don't upload your works does not mean a user's qualifying search ends when he can't find your image on Flickr.com. Would it help the rest of us find you by uploading what you can to one of these services that already exist? Sure. It might even have the added benefit of giving you exposure and even get paid for your creativity. But nothing is required.

BS: In your opinion, why do artists need the Orphan Works bill to pass? What are the benefits that you feel people are overlooking?

AC: I believe that orphan works policy promotes very sound copyright practices, and to that extent I believe all artists benefit. It requires users to search for owners to ask their permission to use a work. It requires users to negotiate in good faith and compensate an owner for the use of a work. Additionally, it encourages, without requiring, owners to make themselves more accessible and findable. It signals to the market that the needs of many artists are not being met, and encourages innovators to fill the gap. It encourages art societies to help their members develop best practices and help their constituents be found. And importantly, it goes out of its way to discourage outright infringement.

Some artists more heavily rely on the use of others' works in their own creative works. Just a few examples are: independent and documentary filmmakers, book authors, collage artists, parody and satirists, and DJs. The works of these artists are no more or less creative than the works they include or build from. Even though everyone has their own tastes, I don't think it's right to claim one kind or genre of art is more valuable than another--even if one follows from another. If you want to ensure your freedom of creativity to include another's work in your own, and are willing to search for the owner and compensate them for your use, orphan works policy should help you.

Lastly, many artists' work are not appreciated until after they have passed, maybe society wasn't ready for their creative expression. What if someone discovered your work but could not share it because there was no one to ask permission? Not to get too existential here, but if you have a sense of legacy or even pride in your work, how might you feel if you passed away and no one ever saw your life's work and creativity? I think orphan works addresses this problem.

BS: Finally, are you alarmed by the number of artist groups, collectives, and art world professionals that have spoke out against the bill?

AC: Yes. I don't know if I've changed any minds with my responses today. But at least there is this dialogue. Unfortunately, with many of the groups eluded to in your question, there is no dialogue. Many of these groups have had a knee-jerk reaction from the beginning and have polarized their membership with fear. They've created straw men for their memberships to rally against, when the truth is that those companies have had very little stake in this legislation (I wish they were more involved, but they're not). I believe the amount of effort put into building and rallying these groups' membership could have been refocused to actually help their membership, instead of scaring them into writing letters of opposition to Congress. It's really unfortunate, and may have even harmed those groups' credibility with members of Congress and their staff.

My group, Public Knowledge, has reached out to a number of artist organizations like photographers, graphic artists, comic illustrators, textile manufacturers, etc. in an effort to try to address their concerns. I've personally corresponded and talked to a number of concerned artists. Back in 2005, part of the problem for artists was the lack of visual searches at the Copyright Registration. We proposed remedies and actually got them included into 2008's legislation. To a certain extent, we believe that some groups have used that good will against us. But still we continue to try--and plan to push forward an effort to make the Copyright Registry more open and accessible to make it easier and cheaper for artists to protect their works and be found (if they so choose).

Thank you for reading what I've had to say. I'm sure some of my responses will spur other ones, and I'm glad to reply to more. Thank you for the opportunity to be heard, I really appreciate it.

You can learn more about Public Knowledge by visiting their official website-- www.publicknowledge.org . You can read more of my interview by visiting the following page-- www.myartspace.com/interviews.

Take care, Stay true,

Brian Sherwin