We have a proposal to solve the Orphan Works issue. It would let libraries and archives digitize their collections and let individuals duplicate family photos without fear of massive infringement penalties. These are the two needs most commonly cited by the bills’ sponsors and they can be resolved quite simply. Our proposal would limit the bill’s effects to works that are really orphans, with no unnecessary spillover effect to damage the commercial activities of working copyright holders.
Digitizing the Collections of Libraries and Museums
Digitizing someone’s work is an act of reproduction and is therefore subject to the authorization of the copyright holder. But to let accredited libraries and archives bypass these authorizations, the law could grant them certain exceptions to reproduce works without the prior consent of the rights holders, mainly for preservation purposes.
To avail themselves of this privilege, institutions could file a notice of intent to infringe with the Copyright Office, documenting that they’ve made a reasonably diligent, but unsuccessful effort to find the copyright holder. These exceptions should not be extended to cover reproductions on a mass scale, because that would clearly conflict with the artists’ own exploitation of their works and that would prejudice the legitimate interests of the copyright holders, a clear violation of the 1976 Copyright Act, the Berne Convention and Article 13 of the TRIPS agreement, to which the US is a signatory.
This proposal is consistent with the submission of the International Federation of Reproduction Rights Organizations (IFRRO) to the European Union’s i2010 Digital Libraries project. See our 2006 report on this:
This means our proposal would meet the needs of libraries, museums and archives, harmonize US policy with our trading partners overseas and win wide praise from the creative community in the US, who would not see the rights of their own work put at risk.
Solving the Grandma issue
We believe similar orphan works situations – family photo restoration and duplication, personal genealogy usage of orphan works, and orphan works rights clearance for documentary filmmakers – can all be resolved in a similar manner, by carefully and precisely expanding Fair Use to permit limited individual infringements under contractual agreements.
For example, family photo issues could be resolved by means of a simple contract: the person who wishes to duplicate or restore a photo of Grandma could sign an easy-to-understand agreement (with either companies such as Wal-Mart or with the photographer next door), stipulating that they’ve made a reasonably diligent, but unsuccessful search to identify or locate the photographer of record. By doing so, they’d qualify for a precise limited copyright exemption to restore or duplicate the work for home and/or family use only. Under this scenario, it the photographer of record subsequently shows up, the contract would define the specific remedies.
The case of an individual who wishes to duplicate his or her own family photos would be even simpler to deal with: the individual would simply sign a form stipulating that he/she is the author and copyright holder of the photo – period. Any bad-faith assertions or violations of such agreements could then be dealt with as a contractual matter between individual parties, with no unnecessary damage to the rights of others.
A Limited, Workable Solution
We believe this kind of contractual solution to individual orphan works problems would have two virtues:
1. It would create certainty by specifying the terms of each transaction and would, in fact, mirror the kind of indemnification that professional artists and photographers routinely supply to clients, stipulating that our work is original and doesn’t infringe the rights of others.
2. It would have the additional virtue of requiring that only those who avail themselves of the right to infringe would be required to understand the complexities of copyright law, unlike the present bill, which would require all citizens to familiarize themselves with the risks and obligations inherent in the proposed Orphan Works Acts.
3. It would not legalize the infringement of billions of managed copyrights on the grounds that some of them might be orphans.
We believe solutions like this could be arrived at amicably by working with members of the creative community, who are familiar with how copyright law intersects with standard business practice. This kind of imaginative solution should win widespread praise from all parties, while preserving the sanctity of existing copyright-related contracts. It would protect the small businesses that are the heart and soul of the creative community and would continue to act as an on-going incentive to further the creation of new work.
—Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Don’t Let Congress Orphan Your Work
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