Internal:Public Policy/Orphan works

Status: Draft

Shortcut: I:PP/OW

This is a draft of the Public Policy Committee's statement for the U. S. Copyright Office workshop on Orphan Works and Mass Digitization. We participated in the roundtable on March 10–11, 2014; for the then-current guidance we prepared for our panelist, see this revision.

See /Notes for summaries and notes on some of our sources, and this page's talk page for discussions and miscellaneous material.

Guidance

• The draft below is organized, as requested by the Copyright office, along the lines of the topics addressed by the panels, per the original inquiry. Please consult with User:Antony-22 before reorganizing sections.
• They asked us to respond to what others said in our written statement, not just reiterate our spoken comments at the panel.
• Should probably aim for about 5 pages
• Want to get this done in advance of WMDC board meeting on March 29
• Comments/differences on matters of substance before then are especially of interest.

Draft

Introduction

Wikimedia District of Columbia respectfully submits these comments in response to the Copyright Office’s Notice of Inquiry, Docket No. 2012–12, dated February 5, 2014. We are grateful for the opportunity to participate in these roundtables and give a viewpoint from the Wikimedia movement, which we do believe has not yet been reflected in previous comments to the Copyright Office.

The Wikimedia community of volunteers worldwide is dedicated to creating "a world in which every single human being can freely share in the sum of all knowledge" through its educational projects, such as Wikipedia, Wikimedia Commons, and Wikisource. Wikipedia is the fifth-most-visited website on the Internet and the largest reference work ever assembled, with 20 million articles across 285 language editions. Wikimedia Commons is a media file repository of public-domain and freely-licensed educational media content containing over 20 million images, sound clips, and video clips. Wikisource is an online digital library of free-content texts, 300,000 of which are in English. All the content in these Wikimedia projects is freely available to be seen and used legally by anyone in the world because of a free-content license. Wikimedia content is created and maintained not by paid archivists, but by volunteers from around the world and from all walks of life who contribute by editing and uploading files to Wikimedia-supported wikis on the Internet.

Wikimedia District of Columbia is the regional Wikimedia chapter serving Maryland, Virginia, Delaware, West Virginia, and the District of Columbia. We are a nonprofit charitable organization dedicated to the advancement of general knowledge and the collection, development, and availability of educational content under a free license or in the public domain. As an official Wikimedia chapter, we support the goals of the Wikimedia Foundation, including the work of volunteers on Wikipedia and other free knowledge initiatives. We hold events, including training sessions and edit-a-thons, where experienced Wikipedians and newcomers alike have the opportunity to network and learn from each other. We work with museums, libraries, and other specialized institutions to share their knowledge with the rest of the world through Wikipedia, the world's most widely visited not-for-profit website. We are an all-volunteer organization.

Wikimedia's educational mission would benefit from orphan works legislation that is designed to minimize the burden on its volunteer contributors. These volunteers range from high school students to preeminent scientists to people from developing countries. The amount of burden in any reform will affect how we are able to use orphan works in the pursuit of our educational mission. Any reform that imposes large burdens such as an escrow fee, or that does not limit or remove monetary remedies for non-profit educational use, would likely prevent us from using them. It is also important that the law should provide a simple and clear guidelines on what satisfies the requirement of a diligent search, to avoid the chilling effect of uncertainty among users as to when orphan works can freely be uploaded.

We believe that a legislative solution is still necessary to allow Wikimedia projects to use orphan works. The recent technological and legal developments, such as increased availability of online databases and the recent Google Books decision expanding fair use, do not cover the types of works and uses that Wikimedia projects would be interested in. This is a point of difference between Wikimedia projects and traditional galleries, libraries, archives, and museums (GLAM), as we have individual contributors uploading media, and we seek to make our hosted material available for wide reuse by downstream users. For Wikimedia purposes, reform along the lines of the 2006 Copyright Office recommendations or the 2008 Senate bill would help us in our public, educational mission.

On the need for legislation

Wikimedia projects have long used public-domain and freely-licensed works to support Wikimedia's educational mission. These projects include using textual and visual media as part of encyclopedia articles and making them available for reuse by others. However, very few works first published after 1922 are in the public domain, and these very few are due to technicalities that are often hard to verify (partially due to lack of copyright records modernization). Wikimedia projects also use user-provided content granted under a free license, such as those of Creative Commons or the GNU Free Documentation License (GFDL), but these are almost all of very recent publication. Most media created from 1923 to the last ~10 years are therefore unavailable for use in Wikimedia projects.

We would like to note that, since our goal is provide material that is freely available, the Wikimedia projects use works under fair use extremely sparingly. In fact, our internal criteria for non-free content are purposely much stricter than the law would allow for (see Wikipedia:Non-free content policy). We only use works under fair use if no freely licensed equivalent could possibly be created. For example, we generally do not host non-free photographs of living persons or of existing buildings, because a free equivalent could be created by a volunteer taking a new photograph. (These rules only apply to the English-language version of Wikipedia; other language editions such as Spanish and German Wikipedia do not allow fair use media at all.)

Thus an expansion of fair use by the courts or through legislation would not by itself enable readers of Wikimedia to benefit from most orphan works. These works are also unlikely to be unorphaned using improved search tools or databases/registries of owner information, regardless of how much these are improved, as the works we are interested in are mainly historical media whose authors who are not commercially exploiting and are probably unaware of their rights.

On defining "reasonably diligent search"

Wikimedians are systematically careful about copyright, and to do that the systems have to be easy for volunteers to learn and use, and for software to verify. Having simple and clear guidelines on what satisfies the requirement of a diligent search would be important for orphan works to be used on Wikimedia projects. This would avoid the chilling effect of uncertainty among users as to when orphan works can freely be uploaded. It is also important for us that any such definition should be accessible to individuals, not just to sophisticated players with specialized skills and/or teams of professionals supporting them. Our volunteers include a spectrum of Internet users of all ages and English fluency, and the procedure for doing a diligent search should be clear enough that our contributors can follow it easily by following a checklist on our web upload form. These guidelines could be provided through either legislation or Copyright Office regulations. It is reasonable to have different guidelines for different classes of works.

We noticed that many author groups at the roundtable expressed concern that their works could be stripped of metadata and posted to the Internet on sites like Twitter, thus becoming "instant orphans" exploitable by downstream users. We would like to note that while this is a major concern with other actors, Wikimedia policies are in fact very careful about copyright, and use of orphan works on Wikimedia projects is not likely to result in such situations. We require source and author information on every upload, and we actively search for and delete uploads that to not provide this metadata. (See w:WP:IUP#Copyright and licensing and w:WP:GID#Addressing suspected copyright infringement.) In addition, English Wikipedia form for uploading media requires users to state that the work is either demonstrably a free work or meets Wikipedia's stringent criteria for fair use; selecting a third option that states "I found this file somewhere, but I don't really know who made it or who owns it" brings up a message sternly warning the user not to upload it.

On the role of registries

Imposition of a mandatory registration of uses of orphan works would be an added burden for Wikimedia volunteers. However, if the details are properly thought out this impediment could potentially be overcome, for example if there is an API that would allow such registration to be automated through our own upload form rather than requiring a separate process. We see no problem if registration of uses were made optional.

We recognize the interest of copyright holders in avoiding a situation where works could labeled as orphans then their uses could not be found again or tracked. Unlike other categories of reuse, any orphan work hosted on Wikimedia projects is widely available on the Internet and easily findable by a creator wishing to reclaim their rights. Such searches can be conducted quickly and easily for free from regular web browsers anywhere without any need to register with Wikimedia projects. The Wikimedia projects themselves thus act as a sort of public registry for the orphan works they store, and it would be easy for other registries to incorporate lists of the orphan works stored on Wikimedia projects.

On types of works, including photographs

• Photographs should not be excluded from orphan works reform; in fact, these are the works we probably want the most!
• The European orphan works reform directive (details here) did not cover photographs to the extent we need. It would not allow commercial use, and therefore orphan works could not be freely licensed in the way usable in Wikimedia projects.
• The types of works we are interested are mainly historical photos and works such as those found in archives and libraries. These may be either attached to larger works like books, or be stand-alone items. We think that the body of works that the author groups are concerned about are different from the ones we want, and perhaps some line can be drawn to separate these (such as providing evidence that the work is at least 20 or 30 years old).
• Orphan work status does not override privacy concerns and we already have guidelines about privacy
• Our contributors are both individuals and partner organizations such as galleries, libraries, archives, and museums.
• It can be unclear whether a copyright exists on a work, if for example its creation date is unclear (notably if it might be before or after 1923), the country in which it was created is unclear, or if it is unclear whether its creator was a U.S. federal employee on duty, or off duty, or a government contractor. It would be helpful for our mission to allow such cases to be searched, documented, and treated as orphan works and allow some use of them.

Examples

Wikimedia projects currently can use orphan works only when they would qualify for fair use under our stringent restrictions, as discussed above. Thousands of our volunteers, across the globe, have confronted these issues. They arise frequently. Some volunteers have built up a lot of expertise about it and documented procedures and recommendations online.

Here we list examples where reform would help serve our mission.

• Wikimedia DC's upcoming photo hunt in the South. Individually created photos will be under a free license, but buildings that no longer exist or had a different appearance need historical photos. We're seeking to partner with local archives and historical societies, but their photos often have no metadata. Without author and publication data, we have no way to determine if they are in the public domain and thus can't use them. Orphan works reform would however allow us to use these historical works to illustrate articles, and make them available for wider reuse by others.
• Ezra Pound photo. A photo of the young Ezra Pound from 1898 (or maybe 1897) has no known copyright-holder and its status is unclear, partly because its date of first publication is unclear. Permission does not appear to have been given by any copyright holder. A dozen Wikimedians have worked on its provenance and copyright status. For the extensive and good-hearted and well-educated discussion, see [1], [2], and [3]. Plainly the public interest would be served by clarifying the issue and allowing the photo simply to be used.
  • Original comment from WP:VPM: "A particularly interesting (and still current) case concerns w:File:EzraPound&IsabelPound1898.jpg, a image that has been extremely carefully researched and for which quite a lot is known about its provenance. Its "non-free" categorisation has been raised here, spilling over to commons. Issues have arisen of whether the photographer, his employer, or the subject might have been the original copyright holder. It seems for early US photos, the subject was generally the default copyright holder. Bearing in mind that possibly no one ever knew who the copyright holder was it cannot be determined whether any of its publications over the years have been lawful and so copyright expiry cannot be determined. However, it seems to be accepted that WP's current use of the image (if it is still in copyright) meets WP's non-free use policy, Thincat (talk) 23:31, 8 March 2014 (UTC)"
  • Note that only works published before 1923 are in the public domain. If they were created before then but published after that date, or never published, they are still subject to copyright. See w:User:Antony-22/Drafts#PD table.
• Family photos. 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)
• US government works where it is ambiguous whether they might have been produced by federal employees on duty (in which case the work is public domain) or by contractors (in which case the work is under copyright). National labs are a big examples of this. One of our users (Antony–22) found photos of scientists at a conference on the website of Oak Ridge National Laboratory. Luckily, ORNL has specifically clarified that all material on their website is public domain, but if this clarification had not been made the copyright status of these works would be unclear without specific information about the author, and would not have been able to been used.
• Users avoiding specific topics. One member is often paralyzed with fear regarding materials since 1923, which might be under copyright, and retreats to the safe harbor of post-copyright materials before 1923. This user reports a chilling effect on writing on topics that requires sources written after 1923, due to the complex 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

On types of users and uses

We would like to note that while the Wikimedia Foundation is a non-profit educational organization, it is not a traditional gallery, library, archive, or museum. Any legislation gives special treatment to these types of organization differently should be worded broadly enough that organizations like the Wikimedia Foundation would be included in that category.

The potential restrictions on commercial use of orphan works will have an impact on how Wikimedia projects can use them. While the Wikimedia Foundation is a non-profit organization that itself uses content non-commercially, one of the Foundation's stated goals is to also make our content available for reusers, including those that intend commercial use. Thus, the Foundation does not consider licenses that ban commercial use to be free licenses (see Commons:Licensing/Justifications). If orphan works reform does not apply to commercial uses, our ability to use them will likely be subject to an internal Wikimedia community discussion as to their use whose outcome we cannot predict. However, if reform does allow commercial uses this uncertainty will be removed.

On remedies

The 2006 Copyright Office report recommended that monetary relief should not be available for non-commercial uses of orphan works whose copyright owner later surfaces. We believe that limiting monetary relief to zero or a very low amount is vital to allowing the use of orphan works on Wikimedia projects, as the Wikimedia Foundation and many of our volunteers have limited financial resources, and cannot take the risk of a large financial settlement.

With regard to injunctive relief, we note that we already routinely delete text or media upon request from rights holders without any need for legal demands or proceedings. This will remain the case whether there is orphan works reform or not.

On extended collective licensing

Any provision that requires payment to use an orphan work, for example a self-defense fee in escrow, would likely impede most uses on Wikimedia, again because the Wikimedia Foundation and many of our volunteers have limited financial resources.

We also note that many GLAM organizations have partnerships with various parts of the Wikimedia community in which these organizations post their digitized holdings on Wikimedia Commons rather than on their own website. Any reform should not impose any new burdens on this, such as language that restricts GLAM organizations' publications of orphan works strictly to their own websites.