Internal:Public Policy/Orphan works

Status: Draft

This is a draft of the Public Policy Committee's guidance to our colleague who will be panelist at the Orphan Works and Mass Digitization for the U. S. Copyright Office workshop on March 10–11, 2014. We may in the future make a report to the Board of Directors which can authorize a public statement on the matter.

Talking points

• Explain what the Wikimedia projects are and how we use public-domain and freely licensed text and media.
  • See background prose below. The copyright office community may not know about us except as users, and from what they've read in passing in the newspapers.
  • Emphasize the point that few works first published after 1922 are in the public domain. When they are it is often due to technicalities that can be hard to verify. (Even U.S federal government works can be tricky, if it's not obvious that a federal government employee created them, versus say a contractor.) This puts most media from the twentieth century out of our reach, making it harder to pursue our educational mission.

• For Wikimedia purposes, the orphan works proposals are very constructive and would help us in our public mission.
  • 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. We could quantify some of this effort if it would serve reformers to have grounded evidence.
• State that we want any reform to minimize burdens on our uploaders and the Wikimedia Foundation.
  • We want the procedure to be simple enough that our uploaders can follow it easily by following a checklist on a web form (see examples at right). This includes a spectrum of Internet users of all ages and English fluency. 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.
  • Requiring payment of an self-defense fee in escrow would likely prevent ("be prohibitive for") most uses on Wikimedia. We'd like to avoid mandatory registration of uses of orphan works, though optional registration would be fine.
  • We support low caps on remedies (licenses/infringement paid to copyright owners) for not-for-profit uses of works judged as orphans whose owner surfaces later. The draft legislations lists of institutions that have a low cap or zero on how much they'd owe for infringement. We would like Wikimedia projects to be part of that list. We would like the law to include educational nonprofits generally in the legislation and supporting documents not only identifiable museums, archives, and galleries. (Peter to confirm exactly what's in the 2006 and 2011 docs)
  • A work can be de-facto an orphan because its "copyright status" is unclear., e.g. because its creation date or location is unknown. The 2006 report suggests to leave these out of the orphan-works category. We would prefer to include them, allowing them to be classified and searched as orphan works, so that more works are usable.
  • 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. Each work classified as an orphan and stored in the Wikimedia servers could be found by searching categories of licenses. Such searches can be conducted quickly and easily for free from regular Web browsers anywhere without any need to log in. We can illustrate our mechanisms for such searches if it is of interest to orphan-works reformers. (Two such mechanisms are: search by category; and what-links-here from license templates). Wikimedia could therefore constitute a "registry" for orphan works it stores, and would certainly it easy for other registries to incorporate lists of the orphan works stored there.
• Give specific content examples. Some possibilities are below.

Background on Wikimedia and its uses of works

The Wikimedia community 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 over 285 language editions. Wikimedia Commons is a media file repository making available public domain and freely-licensed educational media content, currently containing over 20 million images, sound, and video clips. Wikisource is an online digital library of free content textual sources; English Wikisource alone has over 300,000 texts. As Wikipedia's content is available under a free content license, it is freely available to be seen and used by anyone in the world. We emphasize that the content in these projects 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 our wikis on the Internet.

Wikimedia projects have long used public domain and freely licensed works to support our educational mission. These uses include using text 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, while those that are are usually due to technicalities that are often are hard to verify. Wikimedia projects also use user-provided content granted under a free license such as Creative Commons or GFDL, but these are almost all of very recent vintage. There is this a very large gap where there are very few items that are available for use in Wikimedia's projects, a situation that is a serious setback for our educational mission.

We would very much benefit from legislation that would allow us to use orphan works is a way that imposes a minimal burden on our many volunteers. Simple and clear guidelines for what threshold must be met for a diligent search would reduce uncertainty about when orphan works can be uploaded. Imposing extra technicalities such as requiring users of orphan works to register or pay an escrow fee would make it difficult or impossible for Wikimedia projects to host these works. Limiting monetary liability for non-profit publishers of orphan works would likely be a necessary provision, and it would be important that wiki-based projects like the Wikimedia Foundation be included in the list of exempted organizations along with libraries, archives, and museums.

Examples

Wikimedia projects cannot currently use orphan works, except when they also would qualify for "fair use." One of the constraints on works used in a fair-use context is that they are available only for English-language projects. Where possible we use images and other works that are in the public domain globally; this helps serve readers of languages with less Web content. Some of those readers are Americans. (is it correct to say that "fair use" does not apply to native american languages? peter to check with Kristin)

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.
• 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 (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 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 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
• . . . we should offer a wikisource example too . . .

Definitions

Source for most of these: 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 2006 report, page 35, excludes works for which it is not known whether a copyright currently applies, e.g. because creation date or location or creator are unknown. That report refers to such situations as "problems determining copyright status. Wikimedia DC would definitely prefer that the legislation includes such cases, which are just like orphans in our practice. See our Oak Ridge example for a case like that. However, for clarity of communication, note that the Copyright Office report did not call those orphan works.)
• registry -- In this context, this refers to databases where works and their copyright ownership are listed and searchable. There are many registries of copyrighted works whose copyright-owner is known ; there are, or could be, registries of orphan works which identify someone who identify those works as orphans, describe the search they conducted to find an owner, and how the orphan-work was used.
• 1976 Copyright Act -- this U.S. law removed the requirement that a work be registered with the Copyright Office, and legislated that a copyright applies as soon as a work is "faxed in a tangible medium of expression." The previous law was the 1909 Act, which did not require this. The 1976 law was more compatible with the international Berne Convention. (These statements are simplifications of a more complex legal situation.)
• 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.
• 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. A search can be more or less deep or diligent (it's both a quantitative and qualitative spectrum), so people say sometimes refer to a "reasonably diligent search" when referring to that threshold that is sufficient for a user to use the orphan work.
• 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.
• protected -- in Copyright Office reports, a work is protected if it is copyrighted, and its owner is protected. In general I recommend our documents avoid this term, because it's subject to instant misinterpretion: Wikimedians often think about whether a 'user or use of a work is protected from claims/accusations/prosecution for copyright infringement. The purpose of an orphan works rule would be to "protect" users and uses -- but this is the wrong use of the word to a copyright expert. It is better for broad communication to say that we want a "safe harbor" for users and uses. We do not advocate, or oppose "protection." If asked about protection, think thrice before answering; it's trappy.
• safe harbor: the idea that a user of a work can follow some procedures to sharply reduce risks of prosecution and payment of damages ; this is what an orphan works law would deliver.

Sources

• The Copyright Office's Mar 10-11 2014 workshop page
• Report on Orphan Works by the US Copyright Office, 2006. Read the executive summary of this even if you read nothing else. (Notes on 2006 report)
• Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document. U.S. Copyright Office. Oct 2011. Especially see pp. 25ff and Appendix D: Foreign Treatment of Orphan Works.
• WMDE Statement on Orphan Works, Berlin, August 10, 2012 ; (Notes on Wikimedia Deutschland statement on orphan works)
• Society of American Archivists' best practices guidance on orphan works
• The Federal Register notice says we have till April 14 to submit a statement
• Resolution in support of "orphan works" legislation adopted by American Library Association Council, Jan 27, 2007 (entirely agreeable to Wiki-DC's public policy committee; lacks tight specifics)
• Copyright: Orphan Works at American Library Association web site
• http://www.librarycopyrightalliance.org/submissions/domestic/orphan.shtml
• Discussion at Wikipedia Village Pump
• Wikipedia article: Orphan works
• Wikipedia article: Orphan works in the United States

See also

• /Notes for summaries and notes on some of the sources above
• This page's talk page for discussions and earlier drafts of sections of this page