Internal:Public Policy/Orphan works

This is a draft of the Public Policy Committee's report to the Board of Directors on the subject of Orphan Works and Mass Digitization for the U. S. Copyright Office workshop on March 10–11, 2014.

Outline

• Background
  • What are orphan works?
  • How Wikimedia projects have benefited from public domain works: media in Commons, text in Wikisource and Wikipedia, etc.
  • Wikimedia projects cannot currently use orphan works; how they would benefit from being able to use them to fulfill our educational mission.
• How are Wikimedia's needs different than the more well-known case of Google Books etc.?
• Which of the specific provisions being proposed would be best? Would some be too burdensome for use on Wikimedia projects?

Sources

• The workshop page
• Report on Orphan Works by the US Copyright Office, 2006 (127 pages plus appendices and comments)
• A 2011 background paper on mass digitization by the Copyright Office, especially see pp. 25ff
• need to trawl Wikipedia: space and the WMF for examples

Examples

• The issue will be clear if we have examples to work from.
• I have a small one. I struggled with the decision about whether to use a photo of economist Bert Hoselitz that came from his family to illustrate the article about him. It wasn't clear what to do and I gave up, to the disappointment of people who had helped me. The original photographer could not be identified. Who held the copyright? How would I label it on Commons? I didn't want to end up in an argument. I'd already had to fight pretty hard to kill off a photo of someone else that was incorrectly labeled as a photo of Hoselitz. The photo was also quite dark--a side issue. To the point: if orphan works were a nicely available permission category on Commons, that would have helped me. -- Econterms (talk)
• one member is often paralyzed with fear regarding materials since 1923 which miht be under copyright, and and retreats to the safe harbor of post-copyright materials before 1923
• ambiguity about US government works which might have been produced by contractors not employees, e.g. those of national labs. photo of scientist example.

Proposal from Copyright Office

The 2006 proposal by the Copyright Office, summarized on p.8, about what to do about orphan works seems appropriate. I believe it did not become law. They may be holding these workshops to rebuild support for it or something like it. Basically it says the user of an orphan work has to make "diligent" efforts to find the proper owner and license it. The Copyright Office does or would have materials online to help the person search and "diligent" would be defined partly by evidence that the user had used those materials. Potential users who can't find the owner could use the material, labeling it as an orphan work. Seems good to me. Can we back that? And/or, is the labeling requirement excessive for Wikimedia? -- Econterms (talk)

Comments from Slowking4

• Slowking4 and I conversed by "google hangout" -- my first time, maybe.
• He says: "We want a procedure that we can say we followed in the metadata of an uploaded file. We'll put it in the licensing terms e.g. on commons. it gives a "safe harbor" - a defense for the good faith. we could also have a licensing procedure going forward. they could migrate it to flicker, after it had been digitized by Wikimedians. The copyright holder would benefit from it. (just pennies normally). it cuts through the uncertainty. if we agree to the procedure we can keep these cases out of court. This way nobody needs to threaten that. We are already doing well at crediting the source of photos."
• He says also: "We're in favor of any reform. We do not need to take a specific stance on specific legislation here. Our principles are clear and simple."
• He has meetings tomorrow that prevent him from making it to the Tuesday evening gathering. He thinks we will have something close to a consensus and so he is not anxious about missing this one meeting."
• We can mention in our briefings in April, and suggested congressional briefings prep on April 12, and briefings themselves on April 14. Could include students.

Possible alternative outline by Peter

• Organizing constraints: Speaker has little time -- 5 minutes? 10? and audience does not know Wikimedia. Because there are many speakers, the orphan issue itself is likely to be explained clearly and we do not have to do that in detail
• What copyright-related materials do we store in English Wikipedia and Commons? (Explain Commons)
• What are examples where we struggle with orphan-works copyrights? (family photos are one case I experienced)
• What do we want in proposed legislation? (likely answer: a feasible, mechanized procedure that Wikimedians can systematically follow that gets us to a "safe harbor" for the orphan/ambiguous cases -- and if a copyright owner shows up we understand the orphan rules don't apply any more and we need permission)
• We might want to illustrate proposed solutions in very practical terms, e.g. with screen shots, to communicate how we'd use it. Communicate that we address this class of issues frequently, and that hundreds of people do so.
• What do we think of the proposed solutions, e.g. in the Copyright Office's 2006 report? (possible answer: they're good, but in addition we'd like to avoid marking up the content being used with an "orphan" stamp, and put that info in the metadata instead if we can)

Definitions

Source: 2006 copyright office Report on Orphan Works

• orphan works -- These are works whose copyright owners cannot be identified or cannot be located, and therefore permission cannot be obtained from them for using the works. (The category may also include works for which it is not known whether a copyright currently applies, but I'm not seeing sources say that.)
• registry -- in this context, this would be a database where works and their copyright ownership are listed and searchable.
• 1976 Copyright Act -- this U.S. law removed the requirement that a work be registered with the Copyright Office, and switched to the mode that a copyright applies as soon as a work is "faxed in a tangible medium of expression." The previous law was the 1909 Act. This is a simplification.
• Berne Convention -- this treaty on copyrights forbids national laws from imposing the requirement that creators of works would have to register them explicitly, or renew them, or give certain kinds of notice to users.
• (reasonably) diligent search -- a likely requirement of a law permitting the use of orphan works is that the user has tried to search for the copyright owner, and the law introduces less friction to the extent if makes a clear explicit feasible to-do list for that user to satisfy the search requirement. So one "diligent search" requirement might be that the user has conducted certain queries to specific registries to see if the works were listed there.
• no response case -- suppose a copyright owner is identified but does not respond to requests by potential users of the work. The Copyright Office report recommends against calling this an "orphan works" case, because the copyright owner is not obliged to respond. However this is in the class of marginal cases that commentators of the orphan-works cases sometimes mention or make recommendations about.

Points we'd want to make

• we want to avoid anyone having to pay an self-defense fee in escrow. that's an undue burden
• we want to avoid other undue burdens'
• we want the procedure to be simple
• we like the idea that not-for-profit uses have a low low cap or zero on how much they owe for infringement. there is a list of institutions that are eligible for a zero-fee. That includes museums and archives. We would like Wikimedia foundation projects to be on that list
• low-res thumbnail-size pix? as an icon. or for identifying a person or subject? JS says this is a fair-use situation now. Maybe not relevant to orphan works
• Commons's rule is that the material must be in the public domain in the U.S. and in the country-of-origin
• Straightforward rules written at the eighth grade reading level are necessary if you are serious about satisfactory compliance from high school students and people who speak English as a second language. Complicated and difficult rules are unlikely to result in satisfactory compliance by high school students and second language speakers. The Internet makes it possible for people of all ages and language abilities to interact with digital works, and our rules on copyright need to be usable by the full spectrum of Internet users.
• One of our members reports a chilling effect on writing on topics that requires sources written after 1923, due to the incomprehensible copyright laws. She would really like to write new articles about topics that are more modern than clipper ships and defunct Tibetan monasteries, and is eagerly awaiting reforms in the law.