Thursday, 26 April 2012
What do authors fear from "Orphan Works" licensing proposals?
Earlier this month I represented the National Writers Union at a fascinating high-level symposium at Berkeley on so-called “orphan works” — written and other publications, the holders of certain reproduction rights to which cannot be identified and/or found by some or all of those who want to reproduce those works.
Slides of presentations and papers from the conference, including the white paper on Facts and Fallacies of Orphan Works (PDF) that I submitted with the endorsement of the NWU, have been posted online. Audio archives of some sessions have also been posted, and more will hopefully be made available eventually.
Many well-meaning librarians and other advocates for public access to information at the conference found it difficult to understand why writers would object to proposed schemes that would allow works deemed “orphaned” to be copied for certain purposes, by certain users, without those users having to get permission from the authors or other holders of rights to those works.
“What’s the problem? What are you afraid of?”
It annoys me that so many librarians and others whose livelihoods depend on the work of writers in creating the books they use have so little understanding of our working lives that they need to ask this question. Nevertheless, the question reflects what is often sincere puzzlement, and deserves a serious answer. Here’s a first attempt to provide one.
(While I have discussed these ideas with other writers, including fellow members of the NWU, I should make it even more clear than usual that I am speaking here solely as an individual author, in an effort to inform the discussion and answer some of the questions posed to me at the symposium. Unlike the white paper distributed at the Berkeley symposium, my comments here have not been endorsed by the NWU or any organization.)
Fundamentally, as discussed in more detail below, I think authors are afraid of two possible unfair outcomes of any scheme for identifying books as “orphaned” and/or “out of commerce” (many of the proposals, including those under consideration in the European Union, deal with both of these categories of works) and granting default licenses for their use.
First, authors fear that even facially neutral “orphan works” and/or “out of commerce” schemes are likely to incorporate defaults and procedures that are implicitly biased towards publishers and against authors, and which result in a de facto reallocation of rights and/or revenue share in works deemed “orphaned” and/or “out of commerce” from authors to publishers.
Second, authors fear that some of our own works from which we are, in fact, generating revenues, especially through online self-publication, are nevertheless likely to be classified as “orphaned” and/or “out of commerce” under the procedures being proposed, and that the uses by libraries and others which are proposed for such “orphaned” and/or “out of commerce” works would reduce or destroy authors’ ability to continue to generate revenues from those works.
Are these fears well-founded? Would working authors’ livelihoods be “collateral damage” — perhaps unintentionally on the part of librarians and academics — of schemes to create a “digital library” in which the librarians, the software architects, the builders, and everyone else would be paid — except the authors whose work would comprise its contents? How would this happen?
1. Structural bias of “orphan works” and “out of commerce” schemes toward publishers vis-
Link | Posted by Edward on Thursday, 26 April 2012, 20:57 ( 8:57 PM)I do not have time to read this entire post because it's my bedtime, but (1) people who have made a good faith effort to find you will never be a source of revenue to you and (2) "orphan works" could not be REASONABLY defined as belonging to a known living copyright holder (though it *is* the job of lawyers to be unreasonable) and (3) such a law would almost certainly apply to only works published more than 50 years ago. Also the reason it will never pass is not authors but corporations -- J.C. Penny used to make sewing patterns, and it will hold the copyright on them forever and ever and ever even though they have not made any revenue on these patterns in many decades and never will again. And what if an "orphaned" song turns out to be (say) copyrighted to a label which was subsumed into a major label 60 years ago? Corporate copyright stretches back 100 years or more now, and none of the influential records of your life and mine will ever be in the public domain because no one will let the Beatles catalog go. This is the kind of issues librarians think about, and why they roll their eyes at you when you freak out about your 10-year-old travel manuals.
Posted by: Eleanor (undeadgoat), 27 April 2012, 21:04 ( 9:04 PM)Eleanor: You say that, "People who have made a good faith effort to find you will never be a source of revenue." This is not true. People don't need to find me or know who I am to generate advertising revenue for me through my Web site.
I have my real name and contact information on this Web site, but many writers have good reasons to publish anonymously. Online advertising has made it possible to earn a living from anonymous writing, without needing to have a (non-anonymous) third-party publisher as a revenue intermediary and privacy proxy.
"Orphan works" laws would effectively prohibit anonymous commercial self-publication, and limit anonymous speech to those who can afford to pay (in money and time) for writing and publishing without needing to monetize their work.
If a self-publisher successfully maintains her anonymity, she will be unfindable, and rights to her her work will be deemed "orphaned". She would be unable to "claim" authorship of her work and its rights and revenues without identifying herself.
It's ironic that orphan works proposals, which would limit anonymous commercial publication to those of independent financial means, are being supported by many individuals and organizations who in other contexts have been staunch defenders of the right to anonymous speech and publication.
Posted by: Edward Hasbrouck, 18 February 2014, 07:57 ( 7:57 AM)Related follow-up:
"Writers shouldn't have to choose between privacy and copyright" (19 October 2016):
https://hasbrouck.org/blog/archives/002271.html
Posted by: Edward Hasbrouck, 7 December 2016, 10:41 (10:41 AM)The following example of the ways that publisher-centric bibliographic practices result in misclassification of works as "out of commerce" was raised by the UK Society of Authors in their latest submission to the UK Intellectual Property Office regarding proposed a proposed EU directive on "copyright in the digital single market":
There is no definition [in the EU proposal for library digitization of works not available through customary channels of commerce] of "customary channels of commerce" and in particular new and emerging channels are not included.
Past practice tends to confirm that what libraries (and perhaps national legislators and regulatory agencies implementing the Directive) define as 'customary' becomes limited to the most traditional (publisher-centric) formats, business models, and distribution channels. A typical example is the Wellcome Digital Library Project in the UK, which has often been cited as a model of best practices:
http://www.create.ac.uk/publications/copyright-risk-scoping-the-wellcome-digital-library-project/
"Previously, the Wellcome Library had worked with ALCS, PLS and the British Library on the ARROW initiative (Accessible Registries of Rights Information and Orphan Works), a 'network of databases and rights registries designed to enable the identification and rights clearance of works to support mass digitisation throughout Europe.' It was decided that books found to be in-commerce (that is: still in print, and available for sale) would not be published on the WL website, as publication would constitute clear infringement and the availability of digital copies might have a negative impact on the market for such works. Alongside ARROW, the Bowker Books in Print website was used to check whether books were in-commerce in non-ARROW countries, resulting in a total of 252 works being identified as in-commerce. The list of remaining books was then sent to ALCS and PLS to run through ARROW...."
In other words, Bowker Books in Print was used as the sole criterion of "in commerce" status for works published outside the EU. And ARROW, which suffers from many of the same defects, to an only slightly lesser degree, for EU-published works. Writers' efforts to revive and make available their backlists through new self-published or self-distributed non-ISBN digital editions, posting on websites for free or as paid downloads, etc., were not considered part of "normal commerce" yet these are now the routes that many authors use to monetise their works- and are well understood by the public to be a route to finding works.
Posted by: Edward Hasbrouck, 7 December 2016, 10:51 (10:51 AM)In the article above, I noted that, "IFRRO, the largest and most diverse international umbrella organization of 'rightsholders', allocates votes according to member organizations' financial contributions to the organization, and has only a single token representative of authors' organizations on its Board of Directors."
In November 2016, to my considerable surprise, I was elected by IFRRO's member organizations of authors to that seat, for a 3-year term through the autumn 2019 IFRRO annual world conference:
https://hasbrouck.org/blog/archives/002275.html
Posted by: Edward Hasbrouck, 6 February 2018, 13:50 ( 1:50 PM)
