[Paleopsych] CHE: Whose Work Is It, Anyway?

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Tue Jul 26 00:32:42 UTC 2005

Whose Work Is It, Anyway?
The Chronicle of Higher Education, 5.7.29

[I won't be going to the hearings but will e-mail in material I have written on 
this issue. Basically, my idea to require copyright owners to pay $100 every 
five years after an initial twenty to keep their copyright live. This 
requirement will not be a large factor for the big publishing houses (which are 
doing the bulk of the lobbying). They will only have to decide whether certain 
books that they have let go out of print are likely to generate a profit if 
they are brought back into print. They will probably not do so unless their 
expectations are for profits several times greater than $100. If an old book is 
hardly selling at all, the effect of my proposal will be to make it go out of 
print (by allowing it to go into the public domain) a very little bit earlier 
than usual.

[Does the $100 figure sound too high or two low?

[I wonder how many books in print and under copyright are more than twenty 
years old anyhow. I also wonder how many books that go out of print ever come 
back into print. What about the age of print-on-demand books?

[Does anyone know?

[How to deal with photographs, daily newspapers, and so on, is something I 
haven't figured out. Obviously, no photographer could pay $100 for every 

[My proposal should most definitely be applied to sound recordings made before 
1972! The failure of that 1976 revision of the copyright act to preempt State 
laws has caused nothing but headaches over trivial financial issues. (I realize 
that this violates my strong presumption for States' Rights, but it is, after 
all, only a presumption and I am not calling for a break-up of the Union over 
copyright issues.) Consider that EMI/Angel's "Great Recordings of the Century" 
Series contains only one recording before the end of WW II, namely one by the 
Cortot-Thibaud-Casals Trio, there's almost no profit to be made from 78s, only 
fees to lawyers, as the on-going Capitol vs. Naxos case shows.]


    The use of 'orphan works' of art and literature, whose creators cannot
    be identified, puts scholars and artists at odds over changes in
    copyright law

    List: [55]Discussions on orphan works, live and online


    Like many other scholars across the country, Joseph Siry might have
    broken the law to illustrate an article he wrote for an academic
    journal -- by including an illustration without obtaining permission
    to do so from its copyright holder.

    Mr. Siry, who is usually meticulous about clearing copyrights, says he
    did his best to get permission for the illustration -- a sketch of a
    building, drawn by a collaboration of architects at several firms,
    that had influenced a Frank Lloyd Wright design some 50 years ago.

    But Mr. Siry, a professor of art history at Wellesley College, hit a
    series of dead ends: The architecture firms involved were out of
    business, and their onetime principals could not be found. The
    rendering had appeared in Life magazine, but staff members there told
    him that the magazine did not own the images. Nor did Life's archives
    have any record of people connected to the design.

    With no apparent owner to approve its publication, the image was stuck
    in copyright limbo, a prime example of what legal experts call an
    "orphan work." Mr. Siry made a difficult decision: He cited the little
    information he had about the design and used it in his article anyway,
    despite the risk of being sued for infringement if an architect turned
    up later with a legal claim to it. He was assured by the academic
    journal, he says, "that this risk was minimal." Still, he expresses
    discomfort over the choice he made.

    Many scholars, archivists, and librarians have stories like Mr.
    Siry's. Orphan works have led to complications not only in publishing
    but also in digitizing projects, preservation efforts, and the
    creation of works like film and video documentaries.

    This week, at the urging of prominent legal scholars, academic-library
    organizations, technology companies such as Google and Microsoft, and
    many other interested parties, the U.S. Copyright Office is holding a
    series of hearings to determine whether copyright law should change to
    allow for more liberal use of orphan works.

    Scholars and others weighed in earlier this year, filing comments on
    the issue with the copyright office in anticipation of the hearings.
    The American Historical Association, for example, noted that orphan
    works had become a problem for scholars, "hampering the historian's
    ability to work with the raw materials of history."

    The comments reveal that even frequent adversaries on copyright issues
    agree that changes are needed in how the law governs orphan works. But
    few people agree on what those changes should be.

    Many issues surrounding orphan works -- how they should be defined,
    vetted, and used, and how much a user should pay if a work's "parent"
    turns up later -- remain subject to vigorous debate, with various
    groups looking out for their interests. The music-licensing
    organizations Broadcast Music Inc. and Ascap have proposed that any
    orphan-works exemptions should not include music. Other parties have
    suggested that changes in law should apply only to domestically
    published works, while foreign works and unpublished works should
    remain strictly protected. (Foreign works must be protected to avoid
    violating international agreements, some lawyers say, and unpublished
    works may need to be off limits to protect the privacy of owners who
    might have preferred that the works remain unpublished.)

    And some groups -- in particular visual artists like photographers and
    illustrators -- strongly oppose any loosening of the law for orphan
    works, seeing it as an assault on copyright that will deprive artists
    and creators of their due.

    Many Ways to Orphan

    An orphan work can be a film, a book, a private letter, a painting, or
    any other creative work covered by copyright, in which protection,
    through the complexity of the law, can extend as far back as 1923. A
    work can become orphaned in any number of ways: For example, an artist
    can die, and the heirs may not know about the artist's copyrighted
    work. A company that published a novel might go out of business or
    fall into the hands of another company that does not maintain
    publication records. It is particularly hard to figure out who took a
    photograph, unless the name of the photographer or studio is cited
    somewhere on the print.

    Works like those add up to a great deal of published material,
    according to studies conducted by research libraries. Five years ago
    Carnegie Mellon University's library studied a sample of about 270
    items from its holdings; librarians could not find the owners of 22
    percent of the works.

    In response to the U.S. Copyright Office's request for comments,
    Cornell University librarians added up the money and time spent
    clearing copyright on 343 monographs for a digital archive of
    literature on agriculture. Although the library has spent $50,000 and
    months of staff time calling publishers, authors, and authors' heirs,
    it has not been able to identify the owners of 58 percent of the

    "In 47 cases we were denied permission, and this was primarily because
    the people we contacted were unsure whether they could authorize the
    reproduction or not," says Peter B. Hirtle, who monitors
    intellectual-property issues for Cornell's libraries. "Copyright is
    supposed to advance the sciences and arts, and this is copyright
    becoming an impediment to the sciences and arts."

    Restrictions on using orphan works, often imposed by risk-averse
    lawyers at colleges and museums, affect scholarly work in ways large
    and small.

    Wendy Katz, an assistant professor of art history at the University of
    Nebraska at Lincoln, had trouble finding the copyright owner of a
    painting she wanted to reproduce in a book. The museum that provided a
    picture of the painting could offer no help, and her search led only
    to another scholar who had published the painting without permission,
    after also failing to find the copyright owner.

    Ms. Katz, too, eventually published the painting, hoping that the
    owner would not turn up. The decision bothers her, as she is normally
    a supporter of copyright for artists, but she believes that scholars
    should get special consideration in cases like these.

    "I don't see publication harming the value of the objects," she says.
    "I'm not making any money from it, and the press is breaking even, if
    they are lucky."

    In its comments to the copyright office, the Center for the Study of
    the Public Domain, at Duke Law School, said whole generations of
    movies are at risk because of their orphan status. Film deteriorates
    more rapidly than other media, such as paper. Digitization projects
    could help preserve the films, but the center notes that donors are
    not inclined to pay for the costly digitization of movies that the
    public cannot see because of copyright restrictions.

    Model Proposal

    Those are the sorts of problems that Peter Andrew Jaszi, a law
    professor at American University, heard about at copyright conferences
    and meetings several years ago, before abandoned works were commonly
    known as "orphans." He encouraged his students at the law school's
    Glushko-Samuelson Intellectual Property Law Clinic to propose a

    The clinic's response, filed with the copyright office this year, has
    come to be seen by many libraries and publishers as a model solution.
    Its basic points: An orphan work is any for which an owner cannot be
    found, regardless of how recently it was published or whether it was
    published at all. People should be able to use an apparently orphan
    work after "reasonable effort" to search for its owner, but the law
    should not spell out what that effort entails. If an owner turns up
    after a supposedly orphan work has been used, the owner should be able
    to collect a small amount -- from $100 to $500 -- but not obtain
    statutory damages, attorneys' fees, or injunctions.

    The Glushko-Samuelson proposal does not advocate establishing a
    registry of orphan works, but some copyright experts do. Lawrence
    Lessig, a Stanford University law professor, recommends requiring
    authors, musicians, and others to register their work within 25 years
    of publication. Software developers would get less time -- five years
    -- because software becomes obsolete much more quickly. A search of
    the government-supported registry would be enough to determine whether
    or not a work was an orphan.

    Proposals by other organizations diverge wildly, but most of them
    disagree on two main points: how an orphan work should be defined, and
    what a user should pay if an owner comes along after a work has been

    Of the two, the issue of payment is simpler.

    Some organizations, such as museums, have recommended paying nothing
    at all. The J. Paul Getty Trust, the Metropolitan Museum of Art, and
    the Solomon R. Guggenheim Foundation have suggested a "safe harbor" of
    five years after the use of an orphan work, beyond which point the
    owner of a work would not receive payment, although he or she could
    negotiate for its continued use.

    On the other side, comprising mainly groups that represent publishers
    and authors, some have proposed that a user should pay a "reasonable
    licensing fee" to the owner, based on what the user might have paid if
    the owner had been found before publication. By contrast, paying a
    small, fixed amount of only $100 to $500 "would cause a real
    unfairness for copyright owners," says Allan R. Adler, a lawyer for
    the Association of American Publishers, which filed comments jointly
    with the Association of American University Presses and a
    software-industry group. "If the user of the work refused to pay even
    that small amount," he says, "it wouldn't be worth going to court to
    collect it."

    Mr. Jaszi, the law professor, contends that stipulating only that a
    fee be "reasonable" is too vague a standard to be useful. "The problem
    with that proposal is uncertainty," he says.

    The reason that people do not use orphan works now, he argues, is that
    "they don't know what their exposure might be if they use something
    and end up with a cease-and-desist letter."

    'It's a Pain'

    When hearings convene this week in Washington and on August 2 in
    Berkeley, Calif., the copyright office might hear far more wrangling
    over what types of works could be used as orphans -- or whether the
    issue is as pressing as some say it is.

    Jane C. Ginsburg, a professor of law at Columbia University, read
    through the comments submitted to the copyright office while she was
    submitting her own. "There are an awful lot of submissions that say,
    'It's a pain in the butt to clear rights,'" she says. "That doesn't
    make a work an orphan work. Both internationally and domestically, you
    don't want this to be used as an excuse to screw individual authors."

    She is concerned that some of the proposed changes are inconsistent
    with international copyright agreements, such as the Berne Convention
    and the World Trade Organization's Trips agreement. As a result, she
    argues, international works should not be covered in any change of the

    "These international norms have teeth," she says. If the United States
    creates an exception to copyright that does not comply with the terms
    of international treaties, she says, aggrieved countries can go
    through the WTO to impose sanctions on the United States.

    Concerns about international law aside, Ms. Ginsburg worries that
    individual artists and independent writers, not big publishers, have
    the most to lose from any change in copyright law because they do not
    have the money or influence to advertise ownership of their work.

    "Many of those who raise concerns about orphan works start from the
    premise that there are works that should be in the public domain
    because their authors don't care about them, and that they are
    clogging up the system and preventing subsequent authors and others
    from using them," she says. "That's not necessarily a correct

    A group called the Illustrators' Partnership of America was formed on
    the basis of issues such as this. Illustrators, the group points out,
    are hard to trace if a picture appears uncredited in a book or online.

    "Visual artists are particularly harmed by this concept of declaring
    orphaned any work where the author can't be located or identified,"
    says Cynthia Turner, a medical illustrator who is part of the group.
    "That just about covers all of our work. We are already having a lot
    of difficulty with our work being separated from its original
    publication and being thrown up on the Web and disseminated without
    our permission."

    Ms. Turner and Brad Holland, an illustrator whose work has appeared in
    Time and The New Yorker, argue that publishers and others will use
    orphan-works exceptions to exploit artists' work.

    "It would undermine our ability to control our rights and make a
    living from the work that we produce," Ms. Turner says.

    'There Is a Market'

    Mr. Holland says he recently resold some illustrations that originally
    appeared in a book 30 years ago. "I never thought anyone would want to
    use them again," he says, "but it suddenly dawned on me that there is
    a market for these illustrations." Just because those illustrations
    were made long ago and were once thought unmarketable even by the
    artist, does not mean that he surrenders his rights to them, he says.

    Those illustrations would have been too old to register under Mr.
    Lessig's proposal, Mr. Holland notes. In general, he says, a registry
    requiring him to dig through and register thousands of illustrations
    is an unfair burden, and it is worse for photographers, who can take
    scores of pictures in a single year.

    "Lessig wants to argue that I need to register everything that I do,
    or it's an indication that I don't see any commercial value," Mr.
    Holland says. A registry would require him to dig through and register
    thousands of illustrations.

    "Peter Jaszi and Larry Lessig and these characters are all arguing
    that the purpose of copyright law is to bring work into the public
    domain as rapidly as possible," he says.

    The Illustrators' Partnership gathered the signatures of hundreds of
    artists and illustrators in the United States and other countries,
    including France, Ireland, and Mexico, and submitted them to the
    copyright office, along with a statement opposing orphan-works

    Despite their opposition to mandatory registration, the illustrators
    are considering a voluntary registry using technology that can embed
    ownership information in a picture, to help people identify the owners
    of works.

    Mr. Jaszi sympathizes with those who worry about exploitation under
    new orphan-works rules, but he worries that various groups will
    pressure the copyright office and lawmakers to "peel off" the more
    challenging parts of orphan-works reform.

    "In other words, the narrower the coverage, the more likely it will
    slide through without controversy," he says. "Anyone who is interested
    in orphan works should watch to make sure that big chunks of material
    don't get pushed aside in an effort to make something happen."

    One of those waiting for the outcome is Leslie Humm Cormier, who
    teaches art history at Emerson College.

    Recently she was working on an article about the Modernist architect
    Josep Lluis Sert, of the firm Sert, Jackson, & Associates. She
    acquired photographs of Sert's work from the 1950s and 60s from his
    partner, Huson Jackson. But she learned that the firm did not own the
    photographs; the photographer did, and he was nowhere to be found.

    "I completed the work as well as I could, but I would have done much
    more in-depth work if I had a sense of freedom," she says. "It would
    have been a journal article. As it turned out, I put it in a lesser

    Ms. Cormier, who recalls once being plagiarized by a newspaper writer,
    says the incident steeled her resolve never to use an item without
    permission. "It's severely limiting," especially for someone in her
    profession, she says. "It's a visual subject that I work in."


    Public discussions on orphan works were scheduled to be held on July
    26 and 27 at the U.S. Copyright Office, in Washington, and on August 2
    at the University of California at Berkeley.

    More information on orphan works, including comments submitted on the
    issue, can be found at [64]http://www.copyright.gov/orphan

    The Association of Research Libraries maintains a Web site on orphan
    works at [65]http://www.arl.org/info/frn/copy/orphanedworks

    The Illustrators' Partnership of America also maintains a site that
    covers copyright issues at [66]http://www.illustratorspartnership.org


   55. http://chronicle.com/prm/weekly/v51/i47/47a03301.htm#talking
   64. http://www.copyright.gov/orphan/
   65. http://www.arl.org/info/frn/copy/orphanedworks/
   66. http://www.illustratorspartnership.org/

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