Internal talk:Public Policy/Orphan works

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.

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.

Wikimedia Deutschland statement on orphan works

Source: WMDE Statement on Orphan Works, Berlin, August 10, 2012

This statement was in response to a proposal, but the proposal was not really summarized. Notes and comments by Econterms (talk):

• orphan works in their definition have been "handed over to an organization" -- so there's some difference from our definition
• 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)
• "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)

• "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
• "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."