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; the then-current guidance we prepared for our panelist is here.

Guidance

The Copyright office wants us to organize the statement along the panel topics, which are described in depth in the original inquiry.
They also want us to not just reiterate our spoken comments in our written statement, but want us to respond to what others said.
Should probably aim for about 5 pages
Want to get this done in advance of WMDC board meeting on March 29

Draft

Introduction

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 making available public-domain and freely-licensed educational media content and currently containing over 20 million images, sound clips, and video clips. Wikisource is an online digital library of free-content textual sources with English Wikisource alone having over 300,000 texts. All the content in these Wikimedia projects is freely available to be seen and used by anyone in the world because of a free-content license. Notably, all the 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 dissemination 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 Wikimedia projects as well as numerous other free knowledge initiatives. Wikimedia DC reaches out to people and organizations in the greater Washington, D.C. area. 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's experiences. We also work with institutions 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 legislation that is reasonably tailored to minimize the burden on its volunteer contributors. First, the law should provide 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. Furthermore, the law should avoid technicalities such as requiring users to register or to pay an escrow fee, which would unduly discourage users and thus make it difficult or impossible for Wikimedia projects to host orphan works. Most important, the law should reasonably limit liability for non-profit users of orphan works, and it should exempt from liability wiki-based projects such as the Wikimedia Foundation, on the same public-policy grounds on which it has exempted libraries, archives, and museums.

For Wikimedia purposes, the 2006 orphan works proposals in the Copyright Office report would help us in our public 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. 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 publication. This puts most media from the twentieth century unavailable for use in Wikimedia's projects, which is a major impasse to Wikimedia's educational 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.

On defining "reasonably diligent search"

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.
The law should provide 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.

On the role of registries

We'd like to avoid mandatory registration of uses of orphan works. Optional registration would be fine and we might be able to automatically register orphan works as they were uploaded onto Wikimedia.
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.

On types of works, including photographs

We have heard concerns from author groups at the roundtable that their works could be posted to the internet on sites like Twitter stripped of metadata, thus becoming "instant orphans" exploitable by downstream users. We note that Wikipedia's policies are very careful about copyright; we require source and author information and actively delete uploads that to not provide this metadata. (w:WP:IUP#Copyright and licensing and w:WP:GID#Addressing suspected copyright infringement) In addition, the English Wikipedia upload pages requires to choose one of the three options that it is demonstrably a free work, it meets Wikipedia's criteria for fair use (which are much more stringent than what is legally allowable), or "I found this file somewhere, but I don't really know who made it or who owns it." Selecting the last of these brings up a message sternly warning the user not to upload it!
The types of works we are interested are mainly historical photos and works such as those found in archives and libraries. 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).
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.
Since our goal is provide material that is freely available, the Wikimedia projects make very limited use of fair use. In fact, our internal criteria for non-free content are much stricter than the law would allow for. 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 photograph themselves. Thus dealing with orphan works solely by expanding fair use is unlikely to allow us to benefit from these works.

Examples

Wikimedia projects currently can use orphan works only when they 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.
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] and [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 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
Copyright status uncertainty. 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 in 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.
. . . we should offer a wikisource example too . . .

On types of users and uses

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

On remedies

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)

On mechanics of extended collective licensing

Requiring payment to use an orphan work, e.g, a self-defense fee in escrow would likely prevent ("be prohibitive for") most uses on Wikimedia.

Not included for now

mass digitization generally
extended collective licensing and mass digitization

Definitions

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 says a copyright applies as soon as a work is "faxed in a tangible medium of expression." It removed the requirement of the 1909 Act that a work be registered with the Copyright Office. 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. Apparently it says copyrights must apply mostly automatically. (There had been a lot of complaints that it was hard to track and keep up the copyrights by freelance essayists, for example.) It is implied that the U.S. didn't sign on to this convention, or not early anyway.
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.
protection and 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. (The term comes from user:slowking4 and may need a brief definition in our documents if copyright people do not recognize it.) 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.
Collecting societies' or Reproduction Rights Organizations act as agents for a large number of copyright owners. Collecting societies administer copyrights, and collect and distribute income, in relation to copyrights owned by their members. (Source: Society of American Archivists paper below.) These are talked about a lot in the copyright and orphan works realms, especially internationally. They don't seem relevant to Wikimedia cases.
"Formalities" -- The Berne convention requires that the countries do not impose a filing or registration requirement on creators of works to get them copyright ; basically it must be easy or automatically. The US got on board with this in 1988 more or less. (2006, p. 60)
The TRIPS Agreement is part of the WTO agreement and explicitly bans formalities to get a copyright on a created work. (2006, p60)

Sources

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)
Orphan Works: Statement of Best Practices by Society of American Archivists, 2009 -- gives clear advice on how to do a relatively diligent search for the copyright holder, including lists of databases and web sites (16 pages)
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 (one page ; entirely agreeable but lacks tight specifics)
Copyright: Orphan Works at American Library Association web site
Discussion at Wikipedia Village Pump (now archived)
Wikipedia article: Orphan works
Wikipedia article: Orphan works in the United States
comments by Roberta Morris to Copyright Office on Orphan Works

Statements opposing orphan works legislation

Lawrence Lessig. Little Orphan Artworks. Op-Ed, New York Times, May 20, 2008. -- Lessig opposed the Copyright Office's 2008 proposal (possibly not the same as the 2006 proposal) because it is not clear what a diligent search is, except that it involves expensive copyright specialists, that the new freedom for users would interfere with the expectations of copyright holders and creators; and that he had a better design which was that for U.S. works copyright should be automatic for 14 years or so then require registration. Econterms's view: While one hesitates to disagree with Lessig, the 2006 proposal would be at least be better for Wikimedia users than the present situation, and his proposal which would also be an improvement for Wikimedia users is not apparently being broadly considered (although we might think it through as an alternative in the future).
NPPA Cannot Support Orphan Works Legislation. National Press Photographers Association. May 7, 2008. -- They oppose it, describing it as a kind of threat, and focused on commercial use of their works without licensing. Not convincing, and they do not address the purposes of educational nonprofits. They say the 2008 version is better than the 2006 version, which suggests that from our point of view it was worse, although I didn't see specifics.
Orphan Works statements by Library Copyright Alliance. Key observation: In their latest statement, the LCA supports expanded fair-use, not the 2006 recommendations. We prefer the 2006 recommendations. Their latest statement says that the widespread support of the 2006 proposals has shattered, and they give examples ; if true this is unfortunate.