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 own