Lessig: Bill to fix orphaned works is 'unfair and unwise'

Larry Lessig championed the need to fix copyright law with regard to "orphan works" – those works that are covered by copyright but whose owners are unknown. He was a guiding force behind the Internet Archive's 2004 suit to get the courts to address the issue. (See Free the Orphans: A Look at the Case of Kahle v. Ashcroft, a piece I did for O'Reilly at the time. The case lost multiple times.)

So now that Congress is taking up the issue, why is he against the proposed legislation? In a New York Times op-ed, Lessig explains. While the problem is real ("Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law"), this solution is both "unfair and unwise."

The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government.

But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.

The change is unfair because for 30 years copyright holders are relied on a regime that said they didn't need to do anything to protect their patents. It's unwise because it doesn't help libraries and archives – the cost of "diligence" will not come cheaply.

A hired expert shouldn’t be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.

Lessig's solution: As he has advocated for years, a return to the registration-oriented, pre-1978 copyright regime:

Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

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.