Right now there is a massive battle brewing over orphan works. According to the US Copyright Office, orphan works are “copyrighted works whose owners may be impossible to identify and locate.”

This issue deserves some background. You might not think this is much of a problem just on its face, but consider that in modern copyright law, everything that you create that you may possess a copyright to, you automatically do. Professor Lawrence Lessig, who represents the vanguard of copyright reform, calls this an “opt-out” system, whereas before, due to the need to register a work for copyright protection, it was an “opt-in” system. The US abandoned this system when it enacted the 1976 Copyright Act and sealed the deal when it ratified and enabled the 1988 Berne Convention, which imported European-style “moral rights” for artists. In some places, notably France, Massachusetts, and California, artists are seen as endowed with certain inalienable rights — and no, I don’t mean the rights to life, liberty, and the pursuit of happiness. Instead, rights like an artist’s ability to veto a decision by a record owner of a work of art to modify the work of art or move it. Record owners or bona fide purchasers no longer own the property outright, and artists always retain some strings attached.

Most people don’t know about this and that’s the way that so-called artist rights groups and legislators probably want it. So now that we know the entire domain of copyrighted works spans an innumerable amount of creative production and content, we can better consider the consequences of orphan works legislation. As the law currently stands, as the artist Frank Stella (ghost-written by the Artist Rights Society, which has not been mentioned in any glowing sense previously on this blog) notes, the owners of copyright may sue for “the destruction of infringing copies, and damages that may be up to $150,000 for each work of art infringed” for the infringement of orphan works as it stands now. The authors substantially infer this from Title 17, United States Code, Chapter 5.

But this has led many scholars, lawyers, and economists to challenge the wisdom of this copyright law reality. Consider again: there may be millions of works out there that simply have no commercial import and the artist could not care less. According to the reigning kings of IP and economics, Posner and Landes, as well as the US Copyright Office:

Empirical analysis of data on trends in copyright registrations and renewals over the last century suggests that a large number of works may fall into the category of orphan works.\5\ Based on data of registrations of claims to copyright and their subsequent renewal under the 1909 Act, it appears that, overall, well less than half of all registered copyrighted works were renewed under the old copyright system. Because renewal was required to maintain protection of a work, this data suggests that, at least in many cases, there was insufficient interest a mere 28 years later to maintain copyright protection. The empirical data does not indicate why any particular works were not renewed, and no doubt, a certain portion of those works were not renewed due to inadvertence, mistake or ignorance on the part of the owner.\6\ With respect to many of these works, however, particularly those owned by legal entities or other sophisticated copyright owners, it can be assumed that the work no longer had sufficient economic value to the copyright claimant to merit renewal. Libraries and scholars have argued that those works that have so little economic value that they fail to merit the small expense and effort of renewal may nevertheless have scholarly or educational value and should not be needlessly barred from such use.

Nonetheless, the law affords copyright owners of long dormant works the ability to take advantage of others who have transformed or used their works to create new work. It does not seem fair — mostly because the law, which is fostered in part to facilitate and encourage the dissemination of information, prevents a vast corpus of creativity from being used in the public domain for the better part of a century! A century! Like with the subject matter of many thousands of new patents, the creativity cannot be appropriated for productive use without potentially suffering rather severe penalties, fair use excepted, though given the state of copyright law many potential fair uses will be avoided due to extreme fear of infringement.

So it seems like the system is untenable, though as copyright scholar William Patry writes, “the U.S. has considerably less room to fix the orphan works problem.” Our Congress has taken a worthy crack at it, though it seems to fall short. Their solution is that if a diligent search to ascertain the owner of the copyright does not turn up anything, then the infringer will not be liable for damages. Unfortunately, “diligent search” is not defined anywhere in the proposed law. Though this seems like a deal-breaker to Professor Lessig, who reasonably proposed a salve (“For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.”), the proposal seems a lot better than the current situation.

No, I cannot say that I echo Lessig’s comments that the legislation would really prove burdensome. It seems better to err on the side of the free transmission of information sans contractual rights. According to the US Copyright Office, and I agree with them, “Given the high costs of litigation and the inability of most creators, scholars and small publishers to bear those costs, the result is that orphan works often are not used–even where there is no one who would object to the use.” Society is losing out due to government’s needless interference in orphan works right now. What we have is an attempt to rectify that. Stella and ARS, of course, predictably err on the side of artists’ livelihoods, arguing:

The Copyright Office proposal would have a disproportionately negative, even catastrophic, impact on the ability of painters and illustrators to make a living from selling copies of their work. This is because—unlike books, songs and films—works of visual art lack universally accepted titles that permit searching by name.

Well, I haven’t seen the exact form of the proposed legislation, but if it resembles the proposal from the US Copyright Office regarding orphan works copyright infringement reform, it would have a provision whereby copyright owners can recover monetary damages from the infringer that amount to “reasonable compensation for the use of the infringed work.” Clearly, if the legislation looks like this, then Congress will have equity and balance of the various interests in mind. It seems to me that this is very reasonable, and hopefully, much to ARS’ dismay, represents a first step in a war to reform the inequities of modern copyright law that will last longer than anything even John McCain could envision in Iraq. In any event, there’s no particularly good reason to subsidize the creation of art by silly copyright law and it’s time to erase the one we currently have for orphan works.

For a much better discussion on the issue than I have given here, check this 15 page report out.