GrindEFX

US Copyright Register Marybeth Peters indicated to Intellectual Property Watch that new legislation concerning “orphan works” is expected to be introduced soon, possibly this week.

The new legislation will likely be modelled after the Shawn Bentley Orphan Works Act of 2008, which last year made it as far as being passed by the Senate, but wasn’t passed by the House by the end of the 110th Congressional term.

An orphan work is simply any copyrighted work where it is either difficult or impossible to contact the owner of the copyright. The problems of orphan works began in the United States after the Copyright Act of 1976 made copyright protection automatic upon fixation. Since then, any type of work that falls within the subject matter of copyright is presumed to be protected. It is easy to see how information about the author can be difficult to find in some cases.

And what are the problems orphan works cause? Pretty much any situation where an organization or individual wishes to make a beneficial use of a copyrighted work but cannot – not because the creator refuses permission, but because the creator can’t even be found to ask permission. Libraries and research institutes in particular are hurt by a lack of legal protections relating to the use of orphan works. For example, many are forestalled from making publicly accessible archives of important aspects of culture because the risks of liability for copyright infringement in using works where permission was sought but the author could not be found are too great.

To that end, the US Copyright Office launched a study which included comments from hundreds of various organizations and individuals and two days of round table discussions attended by representatives of over 50 organizations representing a wide variety of interests: from book publishers to libraries, independent artist interest groups, and many others. The results of the orphan works study were released in January 2006, and many of the proposals and recommendations eventually made it into the Shawn Bentley Orphan Works Act of 2008.

The Act set a framework for limiting liability for groups and individuals so they could use orphan works after a good-faith effort to locate the owner was unsuccessful. It called for the Copyright Office to fashion a “best practices” statement about what constituted a good-faith effort and required groups to document the steps they took to locate the copyright holder. Finally, it provided for a reasonable royalty rate should an orphan works owner surface after the use and object to the use of his work.

Well, once news of this bill hit the internet, it set off a whirlwind of FUD*  from independent artists and musicians, egged on by this provocative video released on YouTube. Their primary concern was that it opened the door for major entertainment companies and publishers to rip off their work wholesale and claim that it was too difficult to locate the author.

While it is heartening to see independent artists and musicians take interest in legislation that may affect them, it does little good to raise an outcry over useful and sometimes necessary legislation based on a false sense of what would happen to these independents should the legislation pass. It’s important to get your facts straight (a good example is the page linked in the previous paragraph. It’s a blog posting titled “Stop the US Orphan Works Act,” written several months AFTER the Act failed to pass before the end of the session.)

Public Knowledge created an excellent page last year addressing some of the myths and facts surrounding the orphan works act. Other sites did an equally decent job explaining the FUD as well.

I will highlight some of the major points they make relating to independent musicians and add a few of my own:

1. This bill would not allow any company to steal works and if caught claim they made a ‘good-faith effort.’ Good-faith is not a vague and meaningless term; the doctrine is used widely in courts. While the actual definition of good-faith can be hard to pin down, it is kind of like pornography: you’ll know it when you see it. As one of my law profs was fond of saying, judges are professional bs detectors. Add in the search documentation this bill provides, as well as the best practices guide from the US Copyright Office, and you have a robust framework to guide courts in deciding what constitutes good faith. And should an organization fail in making a good-faith requirement or keeping the necessary documentation, the limitations on remedies no longer apply. The copyright owner has available the full range of remedies available in a typical copyright infringement case, including statutory damages.

2. Along the same lines as the first point, if you have your works online, then a court would have trouble with an organization trying to claim they could not locate you. Between the site the organization got your work from, metadata in the file itself, and Google, it is not difficult to locate the original creator. I know this from personal experience, having been sent a cease and desist from a trademark holder because of a band page I had on Myspace. The letter was sent to my current address (which was not on Myspace) as well as to the three prior addresses I’ve had.

3. The Act provides for the creation of private registries to facilitate locating copyright holders, especially for visual works (which are not easily searched for in the US Copyright records), but does not require independent artists to use these registries in order to prevent their works from being orphaned. They simply add an additional layer of ease to locating content owners. In my opinion, I don’t think it’s unlikely that a free, “open-source”, web 2.0 registry could be created.

4. The Act would not open the door to bad actors. The Timbalands of the world already misappropriate original works without the protections of any orphan works act. They will continue to do so regardless of whether this bill passes or not. Any other organization will rightly see that this law does not add any incentives to misappropriation. It’s far easier to ask a content holder’s permission for use of a work then it is to jump through the hoops of fashioning a failed search to locate the content holder as required by this Act. And even if they are successful in doing that, should the content owner come forth later, they would be required to pay a “reasonable royalty” for their use. Again, while “reasonable royalty” is not defined specifically, it is a concept familiar to courts. I would think it acts almost on a most-favored nations clause. Why would a record label risk having to pay an unknown musician the same rate they pay an established producer or artist when if they really wanted the music they could negotiate for far less?

5. Finally, while the new legislation has yet to be introduced, the 2008 Act had an amendment that called for a US Copyright Office study into proposals for copyright infringement claims involving small amounts. With the median cost of copyright litigation around $250,000, many independent musicians are out of luck in pursuing even the most blatant forms of copyright infringement. I see this all the time on music forums where someone cries “My song has been jacked! What do I do?” In most cases, it is simply impossible for these artists to pursue a copyright infringement lawsuit. The study would look at different ways to solve this problem. One proposal is for a sort of small-claims copyright court. Like state small-claims courts, it would involve a stream-lined process that dispenses with the need for expensive entertainment lawyers, prolonged discovery proceedings that cost inordimate amounts, and allow musicians to protect their works even when the amount in controversy is not substantial. I believe this or a similar proposal would greatly benefit independent musicians.

So, take the time to read the bill once it’s introduced. Don’t succumb to the FUD that will result. Instead, realize that this bill will only benefit public access to our shared culture and shouldn’t impact independent musicians. And if the same call for a report on small copyright claims is included, it can only stand to benefit them.

* FUD = Fear, Uncertainty, and Doubt

(Image courtesy of kimberlyfaye)