Searching for the Art of the Possible in Copyright Reform

After 40 years of uninterrupted strengthening and lengthening of copyright laws, we have before us an opportunity for significant reform, and even baby steps should be encouraged.
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There is nobody involved in the effort to reform copyright laws who I admire more than Stanford Law professor Larry Lessig. If it were not for his tireless work as the first populist copyright reformer, my organization, Public Knowledge, would likely not exist.

But I must take issue with Professor Lessig's op-ed in Tuesday's New York Times, which disparages proposed copyright legislation that Public Knowledge has worked on for the past four years. This legislation seeks to fix a problem that arose after 1978, when copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright is that it has become very difficult to find who owns the rights to a particular work. Works under copyright for which the owner cannot be found are known as "orphan works." If you are a person or institution that wants to use a work under copyright but cannot find the owner, you are out of luck -- current copyright law provides the same onerous damages whether you are a good Samaritan or a pirate.

Thus, the proposed "orphan works" legislation would give libraries, museums, filmmakers, art historians and other users of copyrighted works protection from these damages in the event a they used a work after making an unsuccessful but "diligent effort" to find the copyright holder. Public Knowledge supports this framework for resolving the orphan works problem because it would put back in circulation millions of works that would otherwise go unused.

Lessig takes issue with the requirement that the copyright holder make a "diligent effort" to find the copyright owner. His core concerns are that 1) the "diligent effort" standard is not precise enough and therefore would create a class of hired search experts who would drain the budgets of libraries and other users; and 2) the bill is "unfair" to copyright owners because automatic copyright protection has given them the expectation that there is nothing they have to do to protect their copyrights.

I'll address each of these arguments. First, the "diligent effort" framework for searches has been endorsed by all the major library and museum groups, as well as by smaller user groups like independent and documentary filmmakers. Contrary to what Lessig believes, small and nonprofit institutional users do not want the government (in the guise of the Copyright Office) to define with specificity what a "diligent effort" is, because no two searches are alike. If the normally big media-friendly Copyright Office (or even worse, Congress) were to define precisely what is a diligent effort, it is likely to be one which would require the type of resources only the big companies have (they want to use orphan works, though few of their works are orphaned). Libraries, museums and small filmmakers are comfortable leaving the ultimate judgment to a court in the very unlikely event the owner of a work reappears and rather than negotiate a license fee, chooses to sue the user.

Second, nothing in the legislation is unfair to copyright holders. The purpose of the legislation is to match users with copyright holders and get the latter paid. If a copyright holder reappears after a user has done a diligent search, then the copyright holder is entitled to reasonable compensation. This is compensation that the copyright holder would likely never have obtained without orphan works relief, because the user would not have risked paying the huge damages provided by copyright law. Moreover, to the extent that photographers and other visual artists may be disadvantaged because the current text-based copyright registry system makes it difficult to find the proper owner of their works, the bills provide the exact relief Lessig says he wants -- a delay to the effective date of the law pending the development of a series of visual registries that will make searching for the owners of these works simple. Public Knowledge first proposed the visual registry idea in 2006 and has been the primary advocate for its inclusion in the bills.

Lessig proposes as an alternative to the legislation something that Public Knowledge wholeheartedly supports in concept: a 14-year copyright term, followed by a requirement that the copyright holder register the work and pay $1 to receive the full protection of copyright law. We like this idea because it could help to solve the damage to creativity and the public domain associated with longer copyright terms.

In practice however, this proposal has two major problems. First, it doesn't actually solve the orphan works problem. Under Lessig's plan, works created between 1978 and today would be exempted at first. That's a lot of orphans, and specifically a lot of orphans floating around the Internet. Even if that exemption were to expire, the 14-year initial copyright window would still give rise to orphan works, since many works cease being exploited after only a couple of years.

The second problem is more fundamental -- and that is that right now, the proposal is completely politically infeasible. Regardless of the fact that nothing in Larry's plan shortens the full term of copyright, the 14-year copyright plus renewal plan will be viewed by copyright holders large and small as an effort to roll back copyright terms. And as much as I would like that to happen, it won't happen in this Congress, or in the next several Congresses to come.

After 40 years of uninterrupted strengthening and lengthening of copyright laws, we have before us an opportunity for significant reform. What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound.

When it comes to the uphill battle of copyright reform, even baby steps should be encouraged. They build the foundation for bigger changes in the future. But regardless of whether these reforms are big or small, Larry Lessig deserves credit for each and every one.

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