Copyright Office seeks your comments on its crazy, broken plan to deal with orphan works

The “orphan works” problem has obsessed the Copyright Office -- as well as authors, publishers, libraries, scholars -- for years.

“Orphans” are the hundreds of millions of books, photographs, films, and other creations whose creators are unknown or can’t be located, but whose copyright protection is still in place. Because no one can figure out who has the right to give permission to use these works, they cannot be used. Orphans have fallen into copyright’s black hole -- a black hole thst threatens to swallow significant parts of our cultural heritage if we don’t do something.

In June, the U.S. Copyright Office announced a widely criticized proposal to create a licensing system to clear these rights, with the goal of facilitating full-text access to copyrighted works for nonprofit and educational uses. The Copyright Office is currently soliciting comments on its proposal

It’s a good thing that they’re soliciting comments: the proposal the Copyright Office came up with is an unworkable mess, filled with restrictions and gaps in coverage. It doesn’t solve the orphan works problem -- instead, it makes the problem worse, and adds a tax on cash-strapped, desperate libraries to the mix.

The Copyright Office needs to hear why its proposal is a bad idea. Comments are due to the Office by October 9, 2015. I submitted mine (below). You can submit yours online.

Dear Ms Pallante:

I am a writer, publisher and editor, the author of many novels, including several New York Times bestsellers (for example, Homeland, Tor Teen, 2013). I am also engaged with the debate over copyright. As someone who depends on archives and libraries for research in my daily creative labor, I count myself lucky to live in an era of such unprecedented access to works spanning many eras and regions.

At the same time, I'm also frustrated by collateral damage arising from the abolition of formalities for copyright registration, coupled with the extension of copyright terms. These two facts mean that much of the ephemera that tells the stories of everyday people from bygone eras are automatically copyrighted, with no visible rightsholder. They're orphan works, without any significant commercial value, but nevertheless protected by the "author's monopoly" for periods that will certainly outlast my life -- and my daughter's. In many (if not most) cases, it's likely that all extant copies will have vanished before they return to the public domain.

I'm a great fan of blanket licensing schemes as least-worst (and sometimes the best) way to resolve copyright deadlocks. I relish the odd cover versions in my record collection, love my cable TV, and I'm happy that clubs can hold open-mic nights where anyone can play any song. So I was excited to hear that the Copyright Office was contemplating a system of blanket licenses through extended collective licensing.

But as I have read and reflected on the U.S. Copyright Office report on Orphan Works and Mass Digitization, the harder it is to imagine how the five year pilot program you imagine for literary works (does this include software, too?), illustrations in books, and photographs can really work.

First, the ECL as presently construed is inhospitable to orphan works, since it provides no way to manage payments for their uses. Consequently, if archives want to make their scanned collections available, they have to limit themselves to non-orphan works. But orphan works are the crux of the problem that blanket licenses try to solve: excessive transaction costs. Collectively, orphan works represent a cultural treasurehouse; but any single work has a value that likely approaches zero, and could cost thousands to clear for use in an archive. Even figuring out which works are orphans and which ones have a visible rightsholder -- so that orphans may be excluded -- would be prohibitively expensive. I know from firsthand experience that any significant archival research immediately turns up more orphans than non-orphans, no matter what the collection.

Next, as imagined, those using the ECL may not apply it to works that are still commercially available, or, perhaps, works whose authors have opted out. There's no way to know, a priori whether a work has is commercially available or whether an author has opted out -- it's easy to check whether a work is in Amazon, say, but not finding it there does not mean that the work isn't still in the stream of commerce. Even if a work is determined to have no commercial life, that is no guarantee that it won't be revived tomorrow meaning that its presence in an archive becomes illegal. Likewise, an author who has not opted out today might do so tomorrow. An ECL is supposed to give downstream users certainty. Not knowing which works may be included under the license, and having no way of knowing from instant to instant whether that initial determination still stands makes the ECL impossible to use -- and more importantly to value as a commercial product. How can a licensee know if they are paying a fair rate when the catalog under license can never be enumerated, and when all works are subject to removal without notice?

Finally, there's the question of commercial activity. The ECL proposal prohibits archives from undertaking commercial efforts to pay the license fee. This means that libraries and archives need to find new money -- which seems unlikely in this climate of austerity -- to pay the fee, and it bars them from doing anything to fundraise for this purpose. For example, a large university archive couldn't offer its patrons the right to plunk down $10 to have a work scanned and cleared, in exchange for getting their names embedded in the scans as the donors who made the work available.

If all of that wasn't enough, there's the fact that this is a pilot program, and there's no guarantee that it will be extended. It asks some of the most desperately underfinanced public institutions in our society to invest significant capital into a project that could be summarily shut down in three years, taking all that work with it.

I want an ECL. I want it for my own work as a writer, and I want it for my posterity. I didn't miss all those family moments and endure all that rejection just to be forgotten by history a few years after my death (or before). The odds aren't good for authors, historically: we are forgotten far more than we're remembered. I want my work to live on in archives and libraries, to be available to scholars and researchers in perpetuity.

Here's how you could have done this, and how I hope you'll end up doing this as the next stage in the evolution of this work:

* Mandate that ECLs be managed with the transparency of free software projects like GNU/Linux and the statistical nous of Google. Every line on its books should be open, its software should be free and open and community-managed, and its overheads should never exceed more than a few percentage points of its total budget. Decades ago, collecting societies did something hard: today all they do is perform mathematical operations on databases. If the collecting society needs more than 5 or 6 employees, something is wrong. Every penny trousered by the collecting society's administrators is a penny denied to the authors it represents. Make its directors representative of all types of authors, not just the commerce-oriented minority that I hail from -- university archives and libraries are primarily full of scholarly writers, who have completely different relationships to their publishers, readers, and copyrights to writers like me.

* Have the license cover all published works found in archives, period. If you must exclude works, require rightsholders to clearly enumerate those works, in electronic form. Make false representations about having the right to control a work punishable as a form of perjury -- none of this DMCA-style business where anyone can claim to be an author's representative and order a takedown with no penalties for being sloppy.

* Break the deadlock: in the event that the writer and publisher both claim the rights to payments under the license, ask Congress to mandate a 75/25 split in the writer's favor.

* Publish a list of orphan works ranked by usage to make it easy for writers' organizations to figure out which creators are worth locating

* Solve the problem of orphan works by statute: create a notice-and-takedown procedure (with appropriate penalties for abuse, see above) for removal of digitized works in publicly available online archives that are erroneously believed to be unpublished.

* Comprehensively cover data-mining, indexing and search under the license terms

The US does not have a collecting society that currently issues blanket licenses for authors of literary works. Of the author organizations that exist in the US, I'd trust the Authors Alliance to do the right thing over other organizations.

I hope you'll take this under consideration. The dream of a blanket license for our collective cultural heritage is beautiful, but this implementation is awfully ugly.

Thank you,

Dr Cory Doctorow
Author, Little Brother, Homeland, Information Doesn't Want to be Free
Fellow, Electronic Frontier Foundation
Visiting Professor, Open University
Co-Owner, Boing Boing/Happy Mutants

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