"Last week [June, 2007], at the International Creative Commons Summit in Dubrovnik, Croatia, Lawrence Lessig made a stunning announcement: he is going to retire from copyfighting and take up a new career, fighting for a new issue. He's going to stay involved with Creative Commons as its CEO, but from now on, he's working to fry a bigger fish: the corruption that leads countries to make bad copyright laws and other regulations, even when they know that the laws are bad for their society" (Doctorow, 2007).
Lessig explained on his blog,
"Indeed, I'm convinced we will not solve the IP related issues until these "corruption" related issues are resolved…that until a more fundamental problem is fixed, "the [free culture] movement" can't succeed … " (Lessig, 2007).
Lessig seemed to me to have given up on changing public policy by working within the legal structure that supposedly implements it, our federal courts and legislature. It seemed a logical move, in alignment with his actions in the wake of the Eldred loss in the Supreme Court, when he co-founded the Creative Commons, a mechanism enabling members of the public, both creators and users of others works, to legally reject the policy choices implemented by Congress and rubber-stamped by the Court. But this time he named a culprit that everyone can understand – money. He said that money speaks too loudly in Washington, so loudly that no other voice can be heard.
So he is off to fight the good fight, and no one wishes him more success than I do. But I am nevertheless not at all confident that enough will change in Washington in the next 10 years to head off the very “no brainer” he referred to as a paradigmatic example of the senselessness, from a policy perspective, of Congressional actions in response to moneyed interests:
"Think, for example, about term extension. From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a "no brainer." As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.
"Yet governments continue to push ahead with this idiot idea -- both Britain and Japan for example are considering extending existing terms. Why? "(Lessig, 2007).
And, indeed, so will the U.S. be considering extending copyright terms another 20 years in just a short 9 years from now (2017). What I want to suggest to you today is that the creative landscape of 2017 will be very different from what existed in 1997 when we last considered this issue, but ironically, not because Congress will have implemented a different public policy by then. Rather, ironically, Congress has become sidelined by its own modus operandi: there are moneyed interests on both sides of the policy debate surrounding the scope and length of copyright protection, and neither of them has a clear advantage anymore. Something else has become a tie-breaker…
Copyright industries live and die by their bottom lines. The smart money that no longer achieves what it used to in Washington has finally begun to bet on the strengths of the digital networked environment rather than against them.
• Inability to achieve policy objectives in Congress forces all sides to accept pragmatic work-arounds
o Creative Commons licenses respond to problems posed by overbroad protection (Doctorow, 2007)
o De facto standards for reasonable searches for copyright owners emerge out of unsuccessful efforts to obtain permission (freethebooks, 2007; Proffitt, et al, 2008), and in the wake of failed attempts to pass Orphan Works legislation (Sanger, 2006)
o Consumer resistance to continued industry reliance on old business models continues in the vacuum created by Congressional inability to consider alternative schemes to compensate copyright owners for materials shared on p2p networks (Netanel 2003, Fisher 2004; EFF 2004; von Lohmann 2008)
• Twentieth century business models give way to progressive concepts more in harmony with the networked environment’s potential
o Corporate pioneers help to normalize demand for freer access and use (Jobs, 2007)
o Attention itself is the scarce commodity, demanding a restructuring of business models
o Convenience and free access win over even stalwart copyright maximalists
o DRM has not only failed to deliver what it promised, it has held back the industries that relied on it (von Lohmann, 2007; Lehman, 2007, as reported in Geist, 2007)
• Courts take advantage of opportunities presented by those who challenge Google’s search engine business practices to re-energize the value of public benefit as a central inquiry in fair use analyses
• The search engine cases bode well for Google’s fair use claim for copying books for indexing, but other forces will likely bring about settlement of this case, depriving the public of the benefit of clear legal authority for fair use indexing
In short, the copyright industries’ inability to implement their visions of public policy in an environment where polarized forces nullify nearly every effort since the DMCA has created a vacuum that the industries themselves are filling by practical adaptation to the realities of the digital networked environment. But they didn’t come to this strategy willingly. They resisted it for more than a decade. They were, in the end, forced by civil disobedience, mass digitization projects and the sheer enormity of the mass of freely available online content, to come to grips with their futures.
Mass digitization, including library mass digitization projects, has played a significant role in bringing about these changes, though it only directly affects copyright law itself where wealthy corporate entities like Google take part and take a stand to push the envelope in court. Mass digitization’s indirect effect is perhaps the bigger story, especially if, as I suspect, the effect may be to render parts of the Copyright Act less relevant to those who at one time depended upon those provisions for the economic life of their industries (Harper, forthcoming). Congress (and its manner of addressing public policy) may continue to be sidelined by the growth of a highly accessible and usable public domain, an immense corpus of implicitly and explicitly licensed materials on the Web, and the fact that corporate and independent copyright owners depend less today on controlling and counting and selling copies, that is, on exploiting their exclusive rights. As these trends grow, as I think they will, it appears that copyright law is simply getting out of the way.
Lessig explained on his blog,
"Indeed, I'm convinced we will not solve the IP related issues until these "corruption" related issues are resolved…that until a more fundamental problem is fixed, "the [free culture] movement" can't succeed … " (Lessig, 2007).
Lessig seemed to me to have given up on changing public policy by working within the legal structure that supposedly implements it, our federal courts and legislature. It seemed a logical move, in alignment with his actions in the wake of the Eldred loss in the Supreme Court, when he co-founded the Creative Commons, a mechanism enabling members of the public, both creators and users of others works, to legally reject the policy choices implemented by Congress and rubber-stamped by the Court. But this time he named a culprit that everyone can understand – money. He said that money speaks too loudly in Washington, so loudly that no other voice can be heard.
So he is off to fight the good fight, and no one wishes him more success than I do. But I am nevertheless not at all confident that enough will change in Washington in the next 10 years to head off the very “no brainer” he referred to as a paradigmatic example of the senselessness, from a policy perspective, of Congressional actions in response to moneyed interests:
"Think, for example, about term extension. From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a "no brainer." As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.
"Yet governments continue to push ahead with this idiot idea -- both Britain and Japan for example are considering extending existing terms. Why? "(Lessig, 2007).
And, indeed, so will the U.S. be considering extending copyright terms another 20 years in just a short 9 years from now (2017). What I want to suggest to you today is that the creative landscape of 2017 will be very different from what existed in 1997 when we last considered this issue, but ironically, not because Congress will have implemented a different public policy by then. Rather, ironically, Congress has become sidelined by its own modus operandi: there are moneyed interests on both sides of the policy debate surrounding the scope and length of copyright protection, and neither of them has a clear advantage anymore. Something else has become a tie-breaker…
Copyright industries live and die by their bottom lines. The smart money that no longer achieves what it used to in Washington has finally begun to bet on the strengths of the digital networked environment rather than against them.
• Inability to achieve policy objectives in Congress forces all sides to accept pragmatic work-arounds
o Creative Commons licenses respond to problems posed by overbroad protection (Doctorow, 2007)
o De facto standards for reasonable searches for copyright owners emerge out of unsuccessful efforts to obtain permission (freethebooks, 2007; Proffitt, et al, 2008), and in the wake of failed attempts to pass Orphan Works legislation (Sanger, 2006)
o Consumer resistance to continued industry reliance on old business models continues in the vacuum created by Congressional inability to consider alternative schemes to compensate copyright owners for materials shared on p2p networks (Netanel 2003, Fisher 2004; EFF 2004; von Lohmann 2008)
• Twentieth century business models give way to progressive concepts more in harmony with the networked environment’s potential
o Corporate pioneers help to normalize demand for freer access and use (Jobs, 2007)
o Attention itself is the scarce commodity, demanding a restructuring of business models
o Convenience and free access win over even stalwart copyright maximalists
o DRM has not only failed to deliver what it promised, it has held back the industries that relied on it (von Lohmann, 2007; Lehman, 2007, as reported in Geist, 2007)
• Courts take advantage of opportunities presented by those who challenge Google’s search engine business practices to re-energize the value of public benefit as a central inquiry in fair use analyses
• The search engine cases bode well for Google’s fair use claim for copying books for indexing, but other forces will likely bring about settlement of this case, depriving the public of the benefit of clear legal authority for fair use indexing
In short, the copyright industries’ inability to implement their visions of public policy in an environment where polarized forces nullify nearly every effort since the DMCA has created a vacuum that the industries themselves are filling by practical adaptation to the realities of the digital networked environment. But they didn’t come to this strategy willingly. They resisted it for more than a decade. They were, in the end, forced by civil disobedience, mass digitization projects and the sheer enormity of the mass of freely available online content, to come to grips with their futures.
Mass digitization, including library mass digitization projects, has played a significant role in bringing about these changes, though it only directly affects copyright law itself where wealthy corporate entities like Google take part and take a stand to push the envelope in court. Mass digitization’s indirect effect is perhaps the bigger story, especially if, as I suspect, the effect may be to render parts of the Copyright Act less relevant to those who at one time depended upon those provisions for the economic life of their industries (Harper, forthcoming). Congress (and its manner of addressing public policy) may continue to be sidelined by the growth of a highly accessible and usable public domain, an immense corpus of implicitly and explicitly licensed materials on the Web, and the fact that corporate and independent copyright owners depend less today on controlling and counting and selling copies, that is, on exploiting their exclusive rights. As these trends grow, as I think they will, it appears that copyright law is simply getting out of the way.
Copyright owners probably thought they got off to a good start legislatively: they took bold steps 10 years ago to strengthen their rights, fearing an erosion of control in the digital environment. Unfortunately, they designed their two major pieces of legislation, the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act, to protect them from the future, rather than to help them embrace it. Those who embraced a different vision of the future, among them cultural institutions (cite), scholars (cite), even the software industry and device manufacturers (cite), were slow to respond, perhaps slow to recognize the profound effects of the laws that were being proposed, but have managed in the wake of these two monumental enactments to prevent further deleterious modifications of the law. This is the stalemate of moneyed interests I referred to earlier (the device manufacturers counter content industries and nullify each others’ initiatives.
On the other hand, efforts to roll back protection, even when it seems in a majority of the industries’ best interests, can be stymied by even a single copyright industry segment that effectively claims catastrophic results if the law passes. The 2006 failure of the orphan works legislation that would have enabled use of works whose copyright owners cannot be identified or located is a good example of this phenomenon. It remains to be seen whether a second attempt this session to pass this legislation will be similarly doomed.
So in most cases we have legislative stalemate. I include myself among those who believe this is actually a good thing. It has allowed individual actors in the market to shape the role of copyright, and they do not seem to believe it has as big role to play in the future as it had in the past!
It has been observed that the copyright industries' success with the Digital Millennium Copyright Act and Copyright Term Extension Act actually undermined their ability to adapt by giving them tools to effectively resist the inevitable, if only for a time (von Lohmann, 2007; Lehman, 2007 as reported in Geist, 2007). But reality has a way of patiently waiting resistance out, and most content industries are coming to grips with the realities of the digital networked environment, and are now enjoying at least some success pursuing alternative business models that do not rely on stringent enforcement of copyrights in digital copies or digital rights management (DRM). It will become more difficult to make the case that copyright owners need more protection (though they will not likely stop pressing the case), because the evidence simply will not support them.
Resistance to resistance. Steve Jobs has worked hard to legitimize consumer demand for relatively freer access to and use of digital media than the content industries were willing to provide (cites). The music giants may be chafing under the constraints of his preferred deal structure, and struggling to break his strong hold on business model evolution (cites), but they owe him much for getting them off the starting line. Television networks seem determined not to make the same mistakes and have begun to offer their programming in relatively freer formats than they were willing to consider just a few months ago (cites). Full-length feature films are still heavily protected by DRM, but they seem to be in a class by themselves given the astronomical costs associated with production (cites). At this point, however, it seems that anything is possible, even DRM-free feature-length films.
Positively paring down. The Creative Commons has made it possible for millions of copyright owners to pare down their own set of rights, for hundreds of millions of items of Web content, in the absence of Congressional recognition of the inappropriate scope of copyright protection for the overwhelming majority of works created today. Studies of how creators use Creative Commons licenses tell us much about the nature of expectations regarding a reasonable scope for copyright (Kim, 2005). Congress would do well to pay attention to this kind of evidence.
De facto efforts to establish orphan works status – the copyright evidence base. Several corporate entities (OCLC, Google and Internet Archive) and individual libraries (Proffitt, 2008) are building tools that help potential users to locate copyright owners to obtain permission for uses, but ultimately that facilitate their own assessments of the risks of placing some protected works online, even in the absence of clear rights to do so.
Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings -- in short, any work protected by copyright -- whose owner cannot be determined or located, or who does not respond when contacted. There have always been orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time because of the relatively short productive life of most published works (cite). The need to exercise the rights of the copyright owner of an out of print or otherwise unavailable works, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. And, works eventually became part of the public domain. Not necessarily so today. Now, because of extremely long copyright terms, and because of the desire to digitize library, archive and museum holdings, and offer access to them to as broad an audience as possible, the orphans will suffer a fate equal to death -- the obscurity resulting from their inability to be "permissioned," digitized and displayed.
As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable (Lessig, 2007). The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement ($150,000 for willful infringement). These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what's going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very confident collection stewards will take this risk and digitize and display them.
And, I believe, that's just what we have among today’s librarians: a growing number who are cautiously confident about their abilities to assess and manage risk.
The photographers' successful campaign to destroy the chance for effective Congressional legislation regarding orphan works in 2006 (cites) drew the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 - 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can't determine the author, you cannot know for sure when such works enter the public domain. The obscurity we consign these works to is not a short term condition. It lasts until (explain). The cost of doing nothing is now unacceptably high.
The heart of the 2006 proposed but failed orphan works legislation, and the current version before Congress, is a limit on the remedies available to copyright owners whose works are mistakenly characterized as orphans. Such limits would certainly encourage the use of orphan works because the current remedies are so extreme. The other critical aspect of the legislation is the effect of a reasonable search for the copyright owner. A reasonable search entitles a user to the limited remedies if an owner appears after the work had been used. But as a practical matter, assuming one does conduct a reasonable search, the chance of mistakenly classifying a work as orphan might be pretty slim (depending on the quality of your search). That's the theory, and as we might imagine, there is a lot of disagreement about what a reasonable search is and how much detail should be spelled out in the statute. Librarians tend to be on the risk-averse side, in general, but in this case, as information specialists, they may have more confidence in their searches for a copyright owner than the average person. Nevertheless, the Register of Copyrights recommends that the industries define reasonable searches for their respective types of works. Though this sounds logical, corporations tend to think in terms of corporate resources that can and probably should be brought to bear on the question of whether there is a contactable copyright owner, in light of a objective motivated by profit (STM Assn., 2007). Applying the same criteria to nonprofit public access uses is not realistic. Nonprofits have neither the resources to make exhaustive searches, nor the profit motive to justify the expenditures of resources.
Until (if ever) we have legislation that reduces the enormous penalties for being wrong, there is considerable pressure to get the "reasonable search" for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. For-profit and nonprofit companies and libraries, working together, are beginning to build an evidence base, at first dedicated to identifying copyright owners, but then to freeing the books that are in the public domain, but not currently properly identified as such. Next in line are the orphans. The protocols we develop to determine who owns a copyright, then whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, whether and where he left heirs, whether a publisher is out of business, where the last place of business was, and so forth. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular publisher's disappearance identifies not just one orphan book but every book whose copyright that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs, or that they cannot be identified or located, identifies as orphaned every book she ever wrote. So it is important to publicly cumulate this evidence and build not only our ability to find copyright owners, but to rebuild our public domain, and identify our orphan works. Slowly but surely, collaborators will put together the evidence we need to feel confident that, even if we must face draconian penalties, we can reduce the risks to manageable levels.
There is additional evidence that other institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance's (OCA) annual meeting (2007) to take the next step with a pilot-project that will "start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date” (cite).
Brewster could be relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. If Brewster is considering making orphan works available, he would be grappling with the same issue described above -- establishing the contours of the reasonable search that establishes the likelihood of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.
The copyright notices that accompany some digital collections provide additional evidence of risk assessment: it is not uncommon to see works included in digital collections accompanied by notes such as one on the Copyright Office's American Memory Website (cite). The note explains that the use of images in the American Memory Digital Collection does not mean that the images are freely usable by anyone for any purpose. Visitors are cautioned to make their own copyright assessment before engaging in any but fair uses of the images. These notes suggest that the Library has conducted its own risk assessment and taken reasonable action based thereon.
Here again, however, these actions highlight the unfortunate consequence of Congressional paralysis: potential copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, "[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts," turned out to be quite wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents' concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law (cite), and its ultimate irrelevance (cite) -- a high price to pay for codifying industry fears.
People are moving forward: copyright owners are confronting their fears of financial loss; other copyright owners are trying trimmed down copyrights for their digital works; and libraries are confronting their fears of being sued for displaying digital images of works on their Websites -- all in the space created Congressional inability to take any meaningful action to reign in the laws it passed a decade ago, whose lack of utility is becoming obvious to many, if not to those with the power to change them.
On the other hand, efforts to roll back protection, even when it seems in a majority of the industries’ best interests, can be stymied by even a single copyright industry segment that effectively claims catastrophic results if the law passes. The 2006 failure of the orphan works legislation that would have enabled use of works whose copyright owners cannot be identified or located is a good example of this phenomenon. It remains to be seen whether a second attempt this session to pass this legislation will be similarly doomed.
So in most cases we have legislative stalemate. I include myself among those who believe this is actually a good thing. It has allowed individual actors in the market to shape the role of copyright, and they do not seem to believe it has as big role to play in the future as it had in the past!
It has been observed that the copyright industries' success with the Digital Millennium Copyright Act and Copyright Term Extension Act actually undermined their ability to adapt by giving them tools to effectively resist the inevitable, if only for a time (von Lohmann, 2007; Lehman, 2007 as reported in Geist, 2007). But reality has a way of patiently waiting resistance out, and most content industries are coming to grips with the realities of the digital networked environment, and are now enjoying at least some success pursuing alternative business models that do not rely on stringent enforcement of copyrights in digital copies or digital rights management (DRM). It will become more difficult to make the case that copyright owners need more protection (though they will not likely stop pressing the case), because the evidence simply will not support them.
Resistance to resistance. Steve Jobs has worked hard to legitimize consumer demand for relatively freer access to and use of digital media than the content industries were willing to provide (cites). The music giants may be chafing under the constraints of his preferred deal structure, and struggling to break his strong hold on business model evolution (cites), but they owe him much for getting them off the starting line. Television networks seem determined not to make the same mistakes and have begun to offer their programming in relatively freer formats than they were willing to consider just a few months ago (cites). Full-length feature films are still heavily protected by DRM, but they seem to be in a class by themselves given the astronomical costs associated with production (cites). At this point, however, it seems that anything is possible, even DRM-free feature-length films.
Positively paring down. The Creative Commons has made it possible for millions of copyright owners to pare down their own set of rights, for hundreds of millions of items of Web content, in the absence of Congressional recognition of the inappropriate scope of copyright protection for the overwhelming majority of works created today. Studies of how creators use Creative Commons licenses tell us much about the nature of expectations regarding a reasonable scope for copyright (Kim, 2005). Congress would do well to pay attention to this kind of evidence.
De facto efforts to establish orphan works status – the copyright evidence base. Several corporate entities (OCLC, Google and Internet Archive) and individual libraries (Proffitt, 2008) are building tools that help potential users to locate copyright owners to obtain permission for uses, but ultimately that facilitate their own assessments of the risks of placing some protected works online, even in the absence of clear rights to do so.
Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings -- in short, any work protected by copyright -- whose owner cannot be determined or located, or who does not respond when contacted. There have always been orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time because of the relatively short productive life of most published works (cite). The need to exercise the rights of the copyright owner of an out of print or otherwise unavailable works, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. And, works eventually became part of the public domain. Not necessarily so today. Now, because of extremely long copyright terms, and because of the desire to digitize library, archive and museum holdings, and offer access to them to as broad an audience as possible, the orphans will suffer a fate equal to death -- the obscurity resulting from their inability to be "permissioned," digitized and displayed.
As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable (Lessig, 2007). The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement ($150,000 for willful infringement). These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what's going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very confident collection stewards will take this risk and digitize and display them.
And, I believe, that's just what we have among today’s librarians: a growing number who are cautiously confident about their abilities to assess and manage risk.
The photographers' successful campaign to destroy the chance for effective Congressional legislation regarding orphan works in 2006 (cites) drew the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 - 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can't determine the author, you cannot know for sure when such works enter the public domain. The obscurity we consign these works to is not a short term condition. It lasts until (explain). The cost of doing nothing is now unacceptably high.
The heart of the 2006 proposed but failed orphan works legislation, and the current version before Congress, is a limit on the remedies available to copyright owners whose works are mistakenly characterized as orphans. Such limits would certainly encourage the use of orphan works because the current remedies are so extreme. The other critical aspect of the legislation is the effect of a reasonable search for the copyright owner. A reasonable search entitles a user to the limited remedies if an owner appears after the work had been used. But as a practical matter, assuming one does conduct a reasonable search, the chance of mistakenly classifying a work as orphan might be pretty slim (depending on the quality of your search). That's the theory, and as we might imagine, there is a lot of disagreement about what a reasonable search is and how much detail should be spelled out in the statute. Librarians tend to be on the risk-averse side, in general, but in this case, as information specialists, they may have more confidence in their searches for a copyright owner than the average person. Nevertheless, the Register of Copyrights recommends that the industries define reasonable searches for their respective types of works. Though this sounds logical, corporations tend to think in terms of corporate resources that can and probably should be brought to bear on the question of whether there is a contactable copyright owner, in light of a objective motivated by profit (STM Assn., 2007). Applying the same criteria to nonprofit public access uses is not realistic. Nonprofits have neither the resources to make exhaustive searches, nor the profit motive to justify the expenditures of resources.
Until (if ever) we have legislation that reduces the enormous penalties for being wrong, there is considerable pressure to get the "reasonable search" for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. For-profit and nonprofit companies and libraries, working together, are beginning to build an evidence base, at first dedicated to identifying copyright owners, but then to freeing the books that are in the public domain, but not currently properly identified as such. Next in line are the orphans. The protocols we develop to determine who owns a copyright, then whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, whether and where he left heirs, whether a publisher is out of business, where the last place of business was, and so forth. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular publisher's disappearance identifies not just one orphan book but every book whose copyright that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs, or that they cannot be identified or located, identifies as orphaned every book she ever wrote. So it is important to publicly cumulate this evidence and build not only our ability to find copyright owners, but to rebuild our public domain, and identify our orphan works. Slowly but surely, collaborators will put together the evidence we need to feel confident that, even if we must face draconian penalties, we can reduce the risks to manageable levels.
There is additional evidence that other institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance's (OCA) annual meeting (2007) to take the next step with a pilot-project that will "start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date” (cite).
Brewster could be relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. If Brewster is considering making orphan works available, he would be grappling with the same issue described above -- establishing the contours of the reasonable search that establishes the likelihood of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.
The copyright notices that accompany some digital collections provide additional evidence of risk assessment: it is not uncommon to see works included in digital collections accompanied by notes such as one on the Copyright Office's American Memory Website (cite). The note explains that the use of images in the American Memory Digital Collection does not mean that the images are freely usable by anyone for any purpose. Visitors are cautioned to make their own copyright assessment before engaging in any but fair uses of the images. These notes suggest that the Library has conducted its own risk assessment and taken reasonable action based thereon.
Here again, however, these actions highlight the unfortunate consequence of Congressional paralysis: potential copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, "[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts," turned out to be quite wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents' concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law (cite), and its ultimate irrelevance (cite) -- a high price to pay for codifying industry fears.
People are moving forward: copyright owners are confronting their fears of financial loss; other copyright owners are trying trimmed down copyrights for their digital works; and libraries are confronting their fears of being sued for displaying digital images of works on their Websites -- all in the space created Congressional inability to take any meaningful action to reign in the laws it passed a decade ago, whose lack of utility is becoming obvious to many, if not to those with the power to change them.
Although mass digitization project proponents do not, for the most part, have the power to change the law (with the obvious exception of the Google Book Search project, which does have that potential), their collections, once digitized and made freely available, contribute to the pressure on content industry business models. As more and more images of valuable cultural artifacts, more documents, audio files, and videos of every type can be accessed freely on the Internet (as in free beer *and* free speech, combining Richard Stallman’s famous distinctions), the viability and utility of sequestering digital information behind toll barriers such as contractual subscriptions or digital rights management decreases. The legal props that copyright owners believed they needed to safely place their assets on the Web have in fact prevented them from learning what they needed to know to really thrive in the networked environment (von Lohmann, 2007; Rogers, 2007). Those who experimented early are well along the way to understanding how to make a living without controlling, counting and getting paid for copies, in other words, without relying on their right to exclude others from making and distributing copies of their works (Anderson, 2008).
Almost 14 years ago John Perry Barlow (1994) wrote a provocative article in Wired, "The economy of ideas," in which he famously reiterated what Stewart Brand had earlier observed, that "information wants to be free.” Much of what he had to say about the futility of ignoring the profound difference between information in physical forms and information in bits was nothing short of brilliant to those who agreed with him, but complete insanity for everyone else. His pronouncements were widely denounced as so much drivel. Among his claims were several predictions that have proven accurate, some, of course, that have not, and a series of suggestions about other ways creators could make a living besides charging for copies of their works. His specific suggestions were not necessarily a road map for the future, but the idea that creative individuals would need to find other ways to make a living besides controlling, counting and being paid for digital copies was very perceptive. And indeed, that's what we see happening today. In November, 2007, Glyn Moody of the Guardian. Ltd. interviewed Mike Masnick, founder of Techdirt, who makes many of the same claims Barlow made in 1994. But this time he's describing in the present tense what his and other companies are doing today (“The trick then is recognizing (sic) what other things that infinite good makes more valuable.”) How did Barlow’s ideas go from insane drivel to practical advice from one businessperson to another about how to adapt to the digital networked environment?
Reality cannot be ignored for long. There have been important admissions by those within our government who were champions of the music, entertainment and publishing industries' claims before Congress, that the industries had to strengthen protections in order to survive in the digital environment. Mary Beth Peters, Register of Copyrights, admitted in a public discussion at a University of North Carolina symposium on Intellectual Property/Creativity and the Innovation Process in 2005 that Congress had made a mistake in extending the term of copyright by 20 additional years in 1998 (Doctorow, 2006). Bruce Lehman, considered the architect of the anti-circumvention provisions of U.S. copyright law, admitted in March 2007 at a conference hosted by McGill University (Canada) that, "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (Lehman, 2007, reported in Geist, 2007). Geist notes that Lehman goes on to suggest we are entering a "post-copyright" era.
The admissions don't stop there, however. Ian Rogers, Yahoo! Music's General Manager, spoke to a group of music industry representatives in October 2007 and very clearly articulated his complete rejection of DRM. Even where admissions are not express, we see the failure of this approach reflected in actions. The year 2007 was a watershed for abandonment of DRM and contract in favor of digital delivery on the open Web: we saw Steve Jobs deliver Thoughts on Music, his opinion on the future of the music industry, which did not include DRM, EMI thereafter agreed to sell unprotected mp3s on iTunes and at Amazonmp3 (Arrington, 2007; Amazonmp3, 2007), the New York Times abandoned its subscription model for access to content on the Web (Riley, 2007), and in the fall, the Wall Street Journal followed suit (AP, 2007) as TV stations finally began to reluctantly offer some programming on the Web (O’Hear, 2007). What will 2008 bring?
It has taken almost 10 years of indulging their wishful thinking for the content industries' strategy (to lock up their works in order to offer them online) to collapse. That is some serious foot-dragging. What has proved the film, music and publishing industries wrong is simply the success of unprotected, freely available works, over and over and over again. As Ian Rogers said, convenience wins (2007). Take news, for example. News is everywhere. If you want a story on Hillary Clinton's reaction to her rival's strategy of "ganging up on her" at October's debate, you can choose from 1,343 similar offerings. This is the kind of information that greets me every morning on Google News: Top Stories. Want an article on that same subject that you have to pay for it? Even if it is in the New York Times? Didn't think so ... And the New York Times finally accepted that in the fall of 2007 (Riley, 2007).
In an environment where immense, no, unbelievably enormous, amounts of information, entertainment, news, video, books, articles, nearly anything you want to know about or explore, is available for free at the touch of a few keys, selling digital copies is just not a great idea. So little by little the industries that claimed they couldn't survive without DRM and copyrights that last forever, are beginning to let go of the idea of using their eternal copyrights and DRM to control and count and sell digital copies. The Web's ease of publishing, library, cultural institutions and commercial mass digitization projects, user-created content, and plain old fashioned public resistance are putting pressure on 20th century business models. Freely available content does not have to be *as good as* the New York Times, though there is excellent content online for absolutely free. It does not have to be *as good as* a Hollywood movie, though, again, there is excellent entertainment available online for free. Media whose owners impose a charge for access to a digital copy and therefore must erect barriers of time, effort, expense and inconvenience in the way of their would-be users must compete for users’ time and attention against TONS OF LEGAL FREE STUFF. If media companies want some part of our limited time and attention, the lesson is that they ought not make it harder for us to give it to them than to everyone else. That's the story.
Now wait a minute, you're no doubt saying. What about movies and books? They are for sale, and even for rent, one copy at a time, as usual. What about subscription databases in libraries? What about digital copies on iTunes, and ebooks? Yes, you are correct. Today. Clearly, we're only beginning the transition. We have turned the corner on the phase of active denial. The industries are no longer headed in the direction of DRM and contractual barriers. Imagine these industries 5 - 10 - 15 years down the road. It is only a matter of how much additional foot-dragging they’ll feel compelled to engage in on the way there.
Almost 14 years ago John Perry Barlow (1994) wrote a provocative article in Wired, "The economy of ideas," in which he famously reiterated what Stewart Brand had earlier observed, that "information wants to be free.” Much of what he had to say about the futility of ignoring the profound difference between information in physical forms and information in bits was nothing short of brilliant to those who agreed with him, but complete insanity for everyone else. His pronouncements were widely denounced as so much drivel. Among his claims were several predictions that have proven accurate, some, of course, that have not, and a series of suggestions about other ways creators could make a living besides charging for copies of their works. His specific suggestions were not necessarily a road map for the future, but the idea that creative individuals would need to find other ways to make a living besides controlling, counting and being paid for digital copies was very perceptive. And indeed, that's what we see happening today. In November, 2007, Glyn Moody of the Guardian. Ltd. interviewed Mike Masnick, founder of Techdirt, who makes many of the same claims Barlow made in 1994. But this time he's describing in the present tense what his and other companies are doing today (“The trick then is recognizing (sic) what other things that infinite good makes more valuable.”) How did Barlow’s ideas go from insane drivel to practical advice from one businessperson to another about how to adapt to the digital networked environment?
Reality cannot be ignored for long. There have been important admissions by those within our government who were champions of the music, entertainment and publishing industries' claims before Congress, that the industries had to strengthen protections in order to survive in the digital environment. Mary Beth Peters, Register of Copyrights, admitted in a public discussion at a University of North Carolina symposium on Intellectual Property/Creativity and the Innovation Process in 2005 that Congress had made a mistake in extending the term of copyright by 20 additional years in 1998 (Doctorow, 2006). Bruce Lehman, considered the architect of the anti-circumvention provisions of U.S. copyright law, admitted in March 2007 at a conference hosted by McGill University (Canada) that, "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (Lehman, 2007, reported in Geist, 2007). Geist notes that Lehman goes on to suggest we are entering a "post-copyright" era.
The admissions don't stop there, however. Ian Rogers, Yahoo! Music's General Manager, spoke to a group of music industry representatives in October 2007 and very clearly articulated his complete rejection of DRM. Even where admissions are not express, we see the failure of this approach reflected in actions. The year 2007 was a watershed for abandonment of DRM and contract in favor of digital delivery on the open Web: we saw Steve Jobs deliver Thoughts on Music, his opinion on the future of the music industry, which did not include DRM, EMI thereafter agreed to sell unprotected mp3s on iTunes and at Amazonmp3 (Arrington, 2007; Amazonmp3, 2007), the New York Times abandoned its subscription model for access to content on the Web (Riley, 2007), and in the fall, the Wall Street Journal followed suit (AP, 2007) as TV stations finally began to reluctantly offer some programming on the Web (O’Hear, 2007). What will 2008 bring?
It has taken almost 10 years of indulging their wishful thinking for the content industries' strategy (to lock up their works in order to offer them online) to collapse. That is some serious foot-dragging. What has proved the film, music and publishing industries wrong is simply the success of unprotected, freely available works, over and over and over again. As Ian Rogers said, convenience wins (2007). Take news, for example. News is everywhere. If you want a story on Hillary Clinton's reaction to her rival's strategy of "ganging up on her" at October's debate, you can choose from 1,343 similar offerings. This is the kind of information that greets me every morning on Google News: Top Stories. Want an article on that same subject that you have to pay for it? Even if it is in the New York Times? Didn't think so ... And the New York Times finally accepted that in the fall of 2007 (Riley, 2007).
In an environment where immense, no, unbelievably enormous, amounts of information, entertainment, news, video, books, articles, nearly anything you want to know about or explore, is available for free at the touch of a few keys, selling digital copies is just not a great idea. So little by little the industries that claimed they couldn't survive without DRM and copyrights that last forever, are beginning to let go of the idea of using their eternal copyrights and DRM to control and count and sell digital copies. The Web's ease of publishing, library, cultural institutions and commercial mass digitization projects, user-created content, and plain old fashioned public resistance are putting pressure on 20th century business models. Freely available content does not have to be *as good as* the New York Times, though there is excellent content online for absolutely free. It does not have to be *as good as* a Hollywood movie, though, again, there is excellent entertainment available online for free. Media whose owners impose a charge for access to a digital copy and therefore must erect barriers of time, effort, expense and inconvenience in the way of their would-be users must compete for users’ time and attention against TONS OF LEGAL FREE STUFF. If media companies want some part of our limited time and attention, the lesson is that they ought not make it harder for us to give it to them than to everyone else. That's the story.
Now wait a minute, you're no doubt saying. What about movies and books? They are for sale, and even for rent, one copy at a time, as usual. What about subscription databases in libraries? What about digital copies on iTunes, and ebooks? Yes, you are correct. Today. Clearly, we're only beginning the transition. We have turned the corner on the phase of active denial. The industries are no longer headed in the direction of DRM and contractual barriers. Imagine these industries 5 - 10 - 15 years down the road. It is only a matter of how much additional foot-dragging they’ll feel compelled to engage in on the way there.
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