Difference between revisions of "Internal talk:Public Policy/Orphan works"

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== Proposal from Copyright Office ==
 
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==Outline==
The [http://www.copyright.gov/orphan/orphan-report-full.pdf 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? -- [[User:Econterms|Econterms]] ([[User talk:Econterms|talk]])
 
  +
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
  +
  +
===Background===
  +
*What are orphan works?
  +
* What copyright-related materials do we store in English Wikipedia and Commons? (Explain Commons)
  +
*How Wikimedia projects have benefited from public domain works: media in Commons, text in Wikisource and Wikipedia, etc..
  +
  +
===Legislative details===
  +
* 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? Would some be too burdensome for use on Wikimedia projects? (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)
  +
*How are Wikimedia's needs different than the more well-known case of Google Books etc.
   
 
== Comments from Slowking4 ==
 
== Comments from Slowking4 ==
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* "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.
 
* "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.
 
* 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.
 
* 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.
  +
  +
== Points we'd want to make ==
  +
[[File:Upload_to_wp1.png|thumb|right]]
  +
[[File:Upload_to_wp2.png|thumb|right]]
  +
* 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.
  +
* Wikimedia is systematically careful about copyright
   
 
== Definitions ==
 
== Definitions ==
Source: 2006 copyright office ''Report on Orphan Works''
+
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 category may also include works for which it is not known whether a copyright currently applies, but I'm not seeing sources say that.)
+
* '''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 would be a database where works and their copyright ownership are listed and searchable.
+
* '''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 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.
+
* '''1976 Copyright Act''' -- This U.S. law says a copyright applies as soon as a work is "fixed 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.
+
* '''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.
* (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.
+
* '''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.
+
* '''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 the 2006 Copyright Office report a work is said to be protected if it is copyrighted, and its owner is thus protected from expropriation. I (Peter) recommend we avoid this term, because it's ambiguous: Wikimedians often think about whether a ''user'' or ''use'' of a work is protected from claims/accusations/prosecution for copyright infringement. Indeed 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 [[w:en:user:slowking4|User:Slowking4]] and may need a brief definition in our documents if the copyright people do not recognize it.) If asked about "protection," think thrice before answering; it's trappy.
  +
* '''safe harbor''': a legal state, the desired destination of a user of an orphan work, who can demonstrate having followed appropriate procedures to limit risks of prosecution and payment of damages. An orphan works law would create this space.
  +
* '''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, page 60)
  +
* The '''TRIPS Agreement''' is part of the WTO agreement and explicitly bans formalities to get a copyright on a created work. (2006, page 60)
   
  +
=== Peter's to-do's ===
=== Wikimedia Deutschland statement on orphan works ===
 
  +
* ask review from [[User:MoonRiddenGirl]], Luis Villa, Stephen LaPorte, Sumana, [[w:User:Levendowski]], and/or others.
Source: [https://www.wikimedia.de/images/4/43/120810_WMDE_Statement_On_Orphan_Works.pdf WMDE Statement on Orphan Works], Berlin, August 10, 2012
 
  +
* ask Kristin whether "fair use" in US also applies to native american tribes and languages
  +
* review my notes from sources, and grab for writeup
  +
* after May 14, blog post about this.
   
  +
== Guidance for written statement ==
This statement was in response to a proposal, but the proposal was not really summarized. Notes and comments by [[User:Econterms|Econterms]] ([[User talk:Econterms|talk]]):
 
  +
* The draft below is organized, as requested by the Copyright office, along the lines of the topics addressed by the panels, per [http://www.copyright.gov/fedreg/2014/79fr7706.pdf the original inquiry]. Please consult with [[User:Antony-22]] before reorganizing sections.
* orphan works in their definition have been "handed over to an organization" -- so there's some difference from our definition
 
  +
* They asked us to respond to what others said in our written statement, not just reiterate our spoken comments at the panel.
* Regarding '''"diligent search"''' (the same term used in the U.S.): "It would . . . be desirable to specify the sources that are to be consulted in such a way as to create a specific, conclusive list. This would help to keep search costs to a minimum and would create the necessary legal certainty." (I'm inclined to agree)
 
  +
* Should probably aim for about 5 pages
* "It is also important that all the listed sources are, without exception, freely accessible within the meaning of the 8 Principles of Open Government Data (http://www.opengovdata.org/home/8principles). This is the only way to ensure the availability of low-cost, professional search services and to encourage the development of appropriate business models." (agreed)
 
  +
* Want to get this done in advance of WMDC board meeting on March 29
* "It is . . . crucial to establish open standards for the catalog and thus create the conditions necessary to simplify the development of appropriate business models and to boost competition within the digitization market." -- note here the idea that the use of orphan works is oriented toward business/competitive use ; not my focus
 
  +
* Comments/differences on matters of substance before then are especially of interest.
* "It is also very much in the interests of publishing houses and collecting societies that their catalogs are included in the search. If they are, it will be possible to identify the rightholders of certain works and to conclude contracts on the digital use of those works."
 
* "Wikimedia Deutschland e.V. believes that it is crucial that commercial partners are involved in searching for rightholders and in preparing works and making them available so that the necessary resources for the comprehensive projects exist. . . [and] the public sector struggles to handle large-scale digitization projects."
 
* ". . . governments need to systematically rule out the “free-rider” problem. This refers to the danger that rightholders might wait until their work has been digitized and possibly “upgraded” (e.g. restored) before claiming back their rights and using the works themselves. To address this issue, countries need a regulation that would require rightholders to reimburse the cost of digitizing a work if they use it for commercial gain after it has been digitized."
 
* "The current copyright situation means that much of the cultural material of the 20th century cannot be made publically accessible. This is not in the interests of users or rightholders. We therefore need a regulation that allows all those interested in doing so to make works accessible in a legally certain way that does not involve incalculable economic risks."
 
* "we fear that the proposed regulation will not provide an adequate solution to the problem of orphan works, particularly as it is limited to only a few privileged players. . . it is unclear why the group of privileged institutions tasked with digitizing orphan works and making them publically accessible remains limited to such a small number." (this refers to aspects of a solution---designated organizations doing the digitizing---that does not seem to come up in the U.S. proposals)
 
* "the catalog of provisions (Article 1(2) a-c) does not include photographs unless they have been published in books, magazines or journals. It can be said that the huge number of unpublished or uncataloged photographs for which the copyright and context of their origin can no longer, or only with great difficulty, be ascertained forms the main supply of orphan works. In the context of providing images for a free online encyclopedia such as Wikipedia, this material is an invaluable source for illustrating entries on topics like contemporary history. During the consultation process on the proposal for the directive, the interests of commercial photo agencies were apparently given priority over those of the general public. This is a major failing of the proposal." (the U.S. proposals do not seem to face this problem)
 
* "the proposal for the directive still does not provide a genuine incentive for mass digitization. The text does not specify either the time period or the exact process involved in a “diligent search”. However, the search methods and parameters to be used must be defined in order to help prevent a serious underuse of cultural works in the future."
 
* "it would be a good idea to encourage rightholders to make these works available under a free license. . . the ShareAlike clause contained in certain Creative Commons licenses can prevent “free riders” from acquiring works for their exclusive use."
 

Latest revision as of 04:58, 13 May 2014

Outline

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

Background

  • What are orphan works?
  • What copyright-related materials do we store in English Wikipedia and Commons? (Explain Commons)
  • How Wikimedia projects have benefited from public domain works: media in Commons, text in Wikisource and Wikipedia, etc..

Legislative details

  • 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? Would some be too burdensome for use on Wikimedia projects? (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)
  • How are Wikimedia's needs different than the more well-known case of Google Books etc.

Comments from Slowking4

  • Slowking4 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."
  • "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.
  • 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.

Points we'd want to make

Upload to wp1.png
Upload to wp2.png
  • 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.
  • Wikimedia is systematically careful about copyright

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 says a copyright applies as soon as a work is "fixed 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 the 2006 Copyright Office report a work is said to be protected if it is copyrighted, and its owner is thus protected from expropriation. I (Peter) recommend we avoid this term, because it's ambiguous: Wikimedians often think about whether a user or use of a work is protected from claims/accusations/prosecution for copyright infringement. Indeed 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 the copyright people do not recognize it.) If asked about "protection," think thrice before answering; it's trappy.
  • safe harbor: a legal state, the desired destination of a user of an orphan work, who can demonstrate having followed appropriate procedures to limit risks of prosecution and payment of damages. An orphan works law would create this space.
  • 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, page 60)
  • The TRIPS Agreement is part of the WTO agreement and explicitly bans formalities to get a copyright on a created work. (2006, page 60)

Peter's to-do's

  • ask review from User:MoonRiddenGirl, Luis Villa, Stephen LaPorte, Sumana, w:User:Levendowski, and/or others.
  • ask Kristin whether "fair use" in US also applies to native american tribes and languages
  • review my notes from sources, and grab for writeup
  • after May 14, blog post about this.

Guidance for written statement

  • 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.