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Monday, February 12, 2007


Save the Orphans!

‘Orphan works’ is a term used to describe works where the owner of the copyright cannot be located. Orphans works are problematic because works can remain unpreserved and unused- and nothing much can be done without locating the owner. The older the material- the more difficult this process is (one of the many problems with copyright term extension). The issue of how to tackle this problem has not been satisfactorily addressed in many countries- including America and Australia.

Canada addressed the issue by allowing the Copyright Board of Canada to issue licenses on behalf of copyright owners in cases where the owner cannot be located. The Australian Copyright Council has recommended adopting a similar approach in its response to the issues paper on fair use (June 2005). However, the approach has been criticised due to the "unpredictability, delay and transactional expense inherent in the current system in Canada that requires a ruling from the Copyright Board" (source).

In January 2006 the US Copyright Office released the result of its inquiry into "orphan work":

"Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work." (p. 1, here).

The report concludes (pp 92-93, here):

The report recommends that the issue of orphans works be addressed by amending the remedies section of the Copyright Act to limit the remedies available when infringement occurs after the copyright user has conducted a 'reasonably diligent search' to locate the copyright owner and the owner could not be located (see recommended statutory language p. 127, here).

Last year the Documentary Organisation of Canada suggested following the approach recommended by the US Copyright Office.

"While the Canadian provisions may have at one time been exemplary in comparison the lack of any such provisions in most countries, the Canadian solution now appears to be outmoded and even unworkable." (p. 25, here)

Professor Lawrence Lessig recently blogged about the US Copyright Office's report. Lessig applauds the content of the report, however disagrees with its recommendations (and the Orphan Works Act 2006- the Bill proposed as a result of the report). He criticises the recommendations for ‘going too far’ as well as ‘not going far enough.’ Lessig explains that if the recommendations are adopted they would overburden copyright owners and users. Formalisation of copyright has not had to occur in the US since 1976. Copyright owners may have made themselves more locatable if they knew they risked losing control of work if they did not. Immediate implementation of the changes recommended by the US Copyright Office would be unfair to copyright owners. Further, copyright users are obliged to conduct a 'reasonably diligent search.' Such an approach imposes costly obligations on the copyright user. Lessig feels that such a system would be inefficient (on top of an already inefficient copyright system) and increase lawyer involvement (therefore costs).

Lessig proposes an alternative system, which I find very impressive. He suggests that after 50 years copyright owners should be obligated to register their copyright interest. If registration does not occur then the work could either move into the public domain or the copyright owner could have curtailed rights. Such a registry would not be government run, rather there would be many registries competing with each other (keeping the cost of registration low) and such registries would have to comply with government protocols. Lessig recommends a phasing in period to give copyright owners an opportunity to register their interest.

He has prepared an excellent video about orphan works and his proposal- available here. I recommend you watch it if you have 35 minutes to spare. It is well structured and provides some valuable information (despite him saying it is an 'overly long, overly professorial explanation'). It also discussed the issue of applicability to works created outside of America.

What really appeals to me is the efficiency of his proposed system of registration (especially compared with the Canadian example). The proposal also makes it much easier for people to locate the owners of older works. We need a system like this especially in light of developments such as copyright term extension. Obviously there are a few loose ends to tie up- examples include:

These are just some examples. Many can be teased out. The proposal by Professor Lessig has great potential and is something that governments should take into serious consideration.

(Pictured: "A Copyright will Protect you from PIRATES", loan Sameli, available under Creative Commons Attribution-ShareAlike License 2.0.)

Update: The attached picture was apparantly published in The New York Clipper, November 03, 1906- the picture appears to be in the public domain [see comments for more info].

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Blogger Jordan said:
As a side note to this post, I seriously wonder whether the 'photo' you used from Flickr should really have a copyright -- even if it is CC-BY-SA. It looks suspiciously like something that the US Library of Congress would have in its archives, though I wasn't able to see it there after about 5minutes of searching. I'd say that the chances of this being a public domain work (at least in the US) are pretty high.

I imagine that perhaps within the worldwide context it is beneficial to have a licence even if the original work was in the public domain. My understanding is that in countries such as Australia the orginality threshold could be low enough to allow for the effort of taking a picture or digital transfer of an original image (even if an exact copy) is enough to qualify for copyright.

In this case, however, it appears from the image's poster's own comment that she did not have the rights to place it under a CC licence as she states that it was 'found' on her hard disk.
Blogger Ben Bildstein said:
I managed to find the original with a Google Image Search: Apparently, it was first published on November 3, 1906, in The New York Clipper.
Blogger Abi Paramaguru said:
Hi Jordon,

After posting 'save the orphans!' I enlisted the help of my colleague Ben Bildstein to figure out the background of the attached photo/picture/literary work. If the information Ben found is accurate then you are correct, the work belongs in the public domain.

I doubt Australia's (albeit very low!) originality threshold is low enough to allow copyright to be asserted for uploading an image.

So clearly the individual uploading the image can't assert the rights embodied in the CC license they attached to the image (very innocently I imagine).

But I wonder- can this individual be forced to remove the license- and who can force removal?
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