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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Orphan Works
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Monday, May 26, 2008
Orphan Works
Neil Netanel
In a New York Times op-ed last week, Larry Lessig denounced a pending major reform of copyright intended to solve the problem of "orphan works." Yet Public Knowledge, a leading public interest advocacy group normally aligned with Lessig on such issues, welcomes the proposed legislation (with a couple tweaks). What's this all about?
Comments:
Neil Netanel said,
>>>>>> The proposed legislative framework should require that copyright owners bear some responsibility for making themselves readily locatable. At the very least, the legislation should providing that copyright owners who fail to register their copyrights and record copyright transfers on a publicly available, searchable digital registry bear the burden of proving that the infringer failed to make the requisite diligent effort. <<<<<< IMO the solution is to establish a searchable digital registry where notices of intent to use copyrighted works may be posted. This is the same as the idea of posting legal notices in newspapers and the Federal Register. It would then be the responsibility of the copyright holders to either (1) frequently check the registry for notices of intent to use their works or (2) sign up for automatic notification of intent to use their works. If no copyright holder responds to a notice within a reasonable time, then the intended use would be allowed. A copyright holder's failure to respond to a notice would not result in forfeiture of copyright protection for other uses. Fair-use principles would continue to apply.
Larry,
The House version of the orphan works legislation contains just such a notice of intent regime, as you might know. One of the problems with it, IMO, is that it is less efficient than requiring or giving incentives for copyright owners to register their works and rights. Under your proposal, every user must register and copyright owners must be continually on guard, checking the notice of intent registry regularly and/or responding to automatic intent notices. Under the copyright registry regime, the copyright owner need register once (although copyright transfer would need to be recorded too), and anyone who wants to know who is the copyright owner can check. There is also an issue posed by copyright's divisibility into multiple sub-rights, which might be owned by different parties. I think that it is easier to succintly describe and to make easily searchable the license of a given type of right (e.g., motion picture rights or electronic distribution rights) than intended uses. There's also a fundamental philosophical issue of whether copyright is something that should be affirmatively claimed or whether it should simply arise automatically for all creative expression. US Copyright law used to adhere to the former. It now largely follows the latter (because the US needs to conform to the Berne Convention), but still contains vestiges of the former (e.g., owners of US copyrights must register their works prior to bringing a copyright infringement claim).
>>>>>> The House version of the orphan works legislation contains just such a notice of intent regime, as you might know. <<<<<<
Neil, Well, if it is not in the Senate version, it could be eliminated when the two versions are reconciled. I am also against the idea of requiring the borrowers of copyrighted works to make a "diligent search" for copyright holders. This requirement is a big burden and the term "diligent search" is vague. The copyright holders are, after all, the beneficiaries of copyright protection, so why should they sit on their duffs while the borrowers do all the work of helping to provide copyright protection? >>>>>> Under your proposal, every user must register and copyright owners must be continually on guard, checking the notice of intent registry regularly and/or responding to automatic intent notices. <<<<<< People are expected to check the Federal Register for notices about things that could affect them. How would this be any different? >>>>> Under the copyright registry regime, the copyright owner need register once (although copyright transfer would need to be recorded too), and anyone who wants to know who is the copyright owner can check. <<<<<< Can't copyright owners do this now? Why is new legislation needed?
1. Lloyd Shugart - May 30, 2008
There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught. The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass. Lloyd Shugart Unintended victim Tammy, full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/ I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist. I am the POSTER CHILD for why this is bad for the copyright creators. I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD. US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPHAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law. My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs” So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself. As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement. How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions. Propet USA v. Lloyd Shugart WD WA. Federal Court Lloyd Shugart
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