Final Thoughts

After researching about orphan works, a topic I barely knew anything about, I feel I have formed a better understanding of how complicated the issues revolving around these works really can become. One solution may seem good at the time and then more issues appear that no one thought of at the time. That is another thing, who should be involved in making up these solutions? It seems that everyone that has a stake in the issue is allowed to make their thoughts on the issue known, but then what? It is up to the government to make the final decisions. Is this right? Should the final say be placed on other organizations or a combination of the government and other organizations?

If other organizations are granted more say in the matter, which ones? I definitely do not think corporations mainly in it for profit should be allowed that power. I was thinking more like the Authors Guild, Illustrators Partnership, etc. But then that might cause more issues. I definitely do not think I would know what would be best, but definitely have come to an understanding that this issue may never be completely settled.

I never thought much about the "parents" of the orphan works as much as I do now. My initial reaction was a yearning to make these works available to the public at least just to view, enjoy, learn from. I didn't think much about how these works could be used, manipulated, or just put back in the market to make a profit for anyone. After trying to find as many different types of sources saying anything about orphan works, I have definitely seen different perspectives on how rulings about how orphan works should be handled can make a big difference in many ways.

As for how this topic is involved with the library environment and managing electronic resources, it definitely can make a difference in many ways. One way would be how librarians can display or use resources. Another might be the amount of electronic resources that may become available in the future. How everyone can use these orphan works whether it is just for learning or profit. The list goes on, but these areas are mainly what I focused on in my research and have enjoyed learning about.

c-registry of images

During my research I seemed to have become very interested in the issues revolving around images that are orphan works. A company called C-Registry is an example of an online service that can make it easier to find the creator/owner of an image. There are fees involved, but they have basic services for free. It seems a creator has to pay $25 a year, but that comes with authentication and an upgrade in services. The following is more info found on the company's blog:

What the creator gets for that $25/year is an upgrade in services that includes the ability to lock records so others can’t change them and a growing list of special or bulk functions, such as bulk upload of URL’s to register and bulk display of usage records. Our next upgrade is a service that’s in high demand and available elsewhere at a much, much higher price. By growing value, we expect to broaden the range of participating creators to include amateurs and “prosumers” from sites like Flickr who are willing to pay $2 per month for these functions.

It seems like a very well organized site that males it easy for people to contact the creator to negotiate use and fees of an image. The following video has a very nice explanation of how all of this works:



References:

http://www.c-registry.us/

http://c-registry-copyright-forum.blogspot.com/

dark archive of "diligent" searches compared to TEACH Act

After reading through some more articles and statements from reputable sources, it has shed some light on some of the issues being worked out regarding orphan works. It seems as though there was a provision in the House bill to create a “dark archive” that would be a database for the “diligent” searches that potential users of orphan works performed to try to locate the owner of said orphan works. There are good reasons to make this database a dark archive, but there are also good reasons to make it available to the public. The “diligent” searches could be studied as to best practices for a search. But all of this work of creating this database only for the purpose of being used in case of a lawsuit renders it useless in countless other ways the information could be used.
Another provision that was discussed was the use of words regarding compensation. It seems in the H.R. 5439, the word “reasonable” was used regarding compensation and then was omitted from S. 2913. When the word reasonable is used, what exactly does this mean? A compensation ceiling has been discussed in some of the readings I have found, but I am not sure if there should be a limit. An orphan work could be any format imaginable and worth any imaginable amount. So many works have a worth that is different to many people. How can someone make use of an orphan work not knowing whether the owner will appear later and demand an unimaginable amount? The money and time involved in a “diligent” search should be considered as a provision. If a work was not registered in the first place, the searcher would not have needed to perform a “diligent” search. I get that the need to register a work in order for it to be copyrighted was done away with. But I think a work should only be automatically under copyright if it includes somewhere the name/names of the creators/owners and an approximate date of creation. Otherwise maybe it should be considered fair game. I understand that certain provisions might add a huge financial burden to creators, but I believe all of these issues need to be discussed and possible solutions tested out for effectiveness and fairness to all parties involved.


References:

Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts,
the Internet, and Intellectual Property,
Committee on the Judiciary
United States House of Representatives
110th Congress, 2nd Session
March 13, 2008
The “Orphan Works” Problem and Proposed Legislation
Accessed on July 14, 2009(also recommend listening to at least part of the hearing webcast located at the top of the following link):
http://www.copyright.gov/docs/regstat031308.html
___________________________________________________________

“Another TEACH Act? Library Association Voices Concerns with Orphan Works Bill” snippet from the Library Journal Academic Newswire May 8, 2008. Accessed on July 14, 2009 (read in print view because adds cut off the right side of article in other view): http://www.libraryjournal.com/index.asp?layout=articlePrint&articleID=CA6559033

Letter to the House of Representatives, Committee on the Judiciary,
Subcommittee on Courts, the Internet, and Intellectual Property from the Library Copyright Alliance. Dated May 5, 2008. Accessed on July 14, 2009:
http://www.arl.org/bm~doc/hr5889ltlca3.pdf
¬

http://www.librarycopyrightalliance.org/index.htm

Abandonware

So far my posts have been discussing orphaned works and I had stated in my first post I wanted to research abandonware as well. Abandonware is an orphaned work in a way. There are many websites dedicated to abandonware (see bottom of post for examples). One such website is called Abandonia and it has been around for ten years now. It explains that websites like this are to preserve old, forgotten games. There seem to be many of these abandonware websites that are specifically for games.

This reminds me of when a friend of mine back when I was fresh out of high school (seems like so long ago!) came over and was so excited about having all these old video games on his laptop. He proceeded to hook his laptop up to my TV and he had controllers, but I can’t remember if he hooked them up to the TV or the laptop. Anyway, the games definitely looked old compared to the newer games out and I recognized a few of them even though I was never much of a video games person. Reading about abandonware takes me back to that incident, but I wonder if he illegally downloaded those or what? He had so many, I would guess at least some of them weren’t considered abandonware.

Copyright Law does not recognize the term “abandonware”. But according to a comment made by the Associate Register for Policy & International Affairs in 2005, Jule Sigall, “when economic gain is no longer being pursued due to abandonment, the reason for the copyright in the first place has evaporated.” Segall goes on to make some very good points about why the abandonware should pass into the public domain. Some of these reasons are:

• Can be used to build something better
• Might be a better product than the “latest and greatest” until bugs are worked out in the newer version
• A user might not be able to afford the “latest and greatest” hardware to run the newer software, which in turn prolongs that hardware’s life before it is added to the toxic waste landfills

Although I could not easily find it, there was a ruling that became effective November 26, 2006 that enabled access to commercially unavailable software (I am still looking for this information on the U.S. Copyright Office website! In the meantime I have listed some sources below that talk about these rules, some of them I am not sure how reliable they are so beware). I am not exactly sure how to search for this on the U.S. Copyright Office website, it is painfully obvious that I have a lot to learn about copyright in general.

After reading some information on the Internet Archive website along with some documents from the U.S. Copyright Office website, I think I have a better idea of this “abandonware” issue. There was a project formed in 2004 called the Classic Software Preservation Project (CLASP). The Internet Archive had successfully lobbied the U.S. Copyright Office in 2003 concerning the archiving of obsolete software. This allowed an exemption to the Digital Millenium Copyright Act.

When trying to decipher the document I found through a search on the U.S. Copyright Office website, I got an idea of what this allowed but it seemed only librarians and archivists are allowed to perform this archiving. So I am still researching if this applies to everyone and when a person “archives” software for the purpose of preservation they are deemed part of this group.

It seems the more I read the more there is to consider and research when it comes to orphan works.

References:

http://www.copyright.gov/orphan/comments/OW0448-Feders.pdf

http://www.associatedcontent.com/article/1622377/copyrights_and_downloads_for_music.html

http://www.copyright.gov/fedreg/2006/71fr68472.html (section: III. Discussion, A. The Six Exempted Cases, Number 2)

http://digg.com/gaming_news/USA_Legalizes_Abandonware

http://www.joystiq.com/2006/11/23/us-copyright-office-grants-abandonware-rights/

http://www.archive.org/details/clasp

http://news.cnet.com/8301-13739_3-10112022-46.html


Abandonware websites:

http://www.abandonia.com/

http://www.freeoldies.com/index.php

http://www.abandongames.com/

http://www.abandonwarering.com/

http://www.abandonware.net/

Orphan Works and the MILE project in Europe

The same issues of Orphan Works that are being legislated in the U.S. are also being brought up in other parts of the world. The MILE project has already started an orphan database for images and shows some resolved Orphan Works claims.

For those of you that are not familiar with what MILE is, it stands for Metadata Image Library Exploitation. The first sentence on their main page explains that their project “aims to promote European cultural heritage and make digital art more accessible by improving metadata.” I was wondering why they chose the name for the project other than it creates an appealing acronym? Although according to www.m-w.com exploit has two distinct definitions, I always think of the negative connotation first. I am sure the MILE project wants to help make images accessible for productive use, but how can they prevent the use of images in a mean and unfair way for one’s own advantage?

There are many pros and cons that are an issue regarding the use of Orphan Works. As I have tried to learn the perspective from an artist’s point of view, it seems that they are worried about what this means for their art. On the www.illustratorspartnership.org website there are a lot of good points about the bills that seem as though they are going to be passed in the U.S. There is a good explanation about how they will be required to register their work with image-recognition databases. The artist will be responsible to pay for this to be done and some artists have an enormous amount of unpublished and published work. To make sure none of an artist’s works are orphaned they will be required to place it in a registry.

After reading more on the Illustrators Partnership of America (IPA) website, I definitely see a different view of the bills about to be passed in the U.S. IPA explains in a different way about how these orphan works may be used. IPA also discusses how it is the person who wants to use the work (the “infringer”) that has to perform a reasonable diligent search. Who decides whether the search has been reasonably diligent? The person performing the search, according to the IPA

There is talk about how there should be a database for these reasonably diligent searches of copyright owners. This would be a good idea because it would be out there for everyone to see and be something that can be used if needed in the future if issues arise. A more precise idea of what a diligent search would involve, and maybe the word reasonable could be taken out of the wording in the bill.

It definitely seems if there are going to be databases created; there should be separate ones for different types of orphaned works, as the MILE project is attempting to do for images. Another point I am not clear on is how the user will pay for the use of an orphaned work? It has been said that it would be free, but if the image is found on a database of orphaned works it would seem there would need to be some type of money involved to keep these databases up and running. Maybe a separate fee for use of the database could be decided? Then would this fee be taken into consideration if a owner of the work appears after the use of the work and wants compensation for that use? There are so many issues that come up involving orphaned works, no wonder it has been in legislation for so long.

References:

http://mileproject.eu/


Tier, J. & Bramley, C. (2009). “Orphan Works and the MILE Project.” Multimedia
Information and Technology, 35(1), 29-32.

Overview of the issues involved in Orphan Works legislation

It is astounding how many issues have been raised involving this topic. After reading through some of the information on www.orphanworks.net I would like to share a few things. I have learned about the legislation involved so far with Orphan Works and as our technology has advanced over the years it has been important to address these issues.

Here is what the Orphan Works Act of 2006 was about:

H.R. 5439 allowed for a limitation on remedies, i.e., no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work if the following was true:


•The user undertook a reasonably diligent, good faith search to locate the owner and could not find him or her
•The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print)
•With an exception for ongoing uses, stopping use of the work if the owner reappears and says “stop”
•Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature

As more and more uses of Orphan Works could happen over time it is important to consider the creation of databases of owners and users. This would aid in the search for owners, and once an owner is found a use database would allow compensation. There should be some sort of restrictions about all these issues as well. Also, who would fund and create these databases that would benefit the use of Orphan Works?

The OrphanWorks.net website gives a very good overview of issues and gives specific examples. I especially liked the section on how the work would be used. One question was:

Should uses only be allowed of the same type of us as the original (photograph to photographic reprint, but not text pattern to shower curtain)?

There are definitely a lot of issues and details to be worked out involving Orphan Works. If we do not figure out good, somewhat concrete laws to deal with this either these Orphan Works will be used however people want to use them or they will not be used at all because possible users will be afraid of consequences.

Who should be in charge of all of these issues? Should it be the Copyright Office of the United States? What about international issues?

In my opinion, it seems that the legislation over the Orphan Works issue has been to get to a point where if an owner was found after the work was already used, the owner and user would go through normal negotiations as though the work had not been used yet. There should be restrictions both for the use of the work and the future negotiations if the owner appears after the fact.

Monopoly of Orphans?

It seems right now Google is waiting on the decision regarding orphan works. They want to be able to add these out-of-print orphan works to Google Books. This would make a lot of information available to a lot more people. I liked how Blount, the President of the Author's Guild, phrased it "turn every public library in the U.S. into a world-class research facility." I am not sure I would completely agree, but it seems that it would definitely add to resources everywhere.

After reading about the Google Books Settlement in regards to the Orphan Works issue I do agree this could be a solution, but I think every orphan work deserves a diligent search for the rights owner before it is considered free game for Google Books.

http://www.publishersweekly.com/article/CA6667338.html