Time to change perspective: Hostages, not Orphans
U.S Law Professor Lydia Loren has just published a draft paper that contains what may be one of the most sensible contributions to the ongoing discussion about the 'orphan works problem'. In her paper 'Abandoning the Orphans: An Open Access Approach to Hostage Works' she makes a strong argument that the very name that has been attached to this problem may be misleading and lead to false solutions and thus should be reframed as the 'hostage works problem'.
Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:
These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)
In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is ‘inhibiting access . . . without any countervailing benefit.’ In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)
Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren's paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. As many observers have pointed out before, the current legislative discussion is likely to make the hostage works problem even worse. This is partly to blame on the framing of the problem as an 'orphan works' problem that results in a focus on re-uniting these works with their 'parent-authors' and protecting them against inappropriate exploitation.
In the second half of her paper, which proposes a solution to the problem, Loren suggests focusing on the role of access facilitators such as libraries, museums and archives (whom, in an somewhat questionable extension of the hostage works metaphor, she refers to as 'special forces') and their role in setting hostage works free:
The access facilitators are those entities that are interested in distributing copies of the orphan works themselves but fear the infringement liability for doing so. Libraries, archives, museums and other similarly focused entities see providing access to these works as helping to advance their core mission of spreading knowledge in their fields. (p.23)
[These] access facilitators really are the ‘special forces’ that are freeing the hostages. This role will typically be played by libraries, museums, nonprofit educational institutions, archives, and public broadcasting entities, although my proposal is in no way limited to these entities. In addition to the public that will be obtaining access to a work previously held hostage by the rules of copyright, an important beneficiary of the actions of these special forces will be the derivative work creators who should be able to rely on the identification of works as hostage works and, particularly as time passes without a copyright owner surfacing, be willing to use such works. (p.25)
Loren argues that what is needed is a set of defined rules for access providers that engage in freeing hostage works that need to be coupled with reasonable incentives for the access providers to undertake this effort on behalf of the public at large:
Freedom for hostage works comes in the form of reliable information concerning the copyright status and the copyright owner of the work. Through the sharing of reliable information, the hostage works will be freed for exposure to interested audiences and potential users of such works. Existing databases can assist with the search for such information, but someone must invest resources in researching those databases, connecting the discovered information to a particular work, and disseminating the information discovered. Thus, creating incentives to produce and publicize this type of high quality information should be a prime focus of any approach to solving the ‘hostage work’ problem. (p.26)
This approach sounds a lot like the approach proposed by the Europeana Commission in it's original proposal for a directive on certain permitted uses of orphan works. As has been pointed out before the proposed directive has become watered down quite a bit especially where it comes to the incentives that encourage access providers to undertake this work. The initial proposal contained provisions that would have offered some form of immunity from legal and monetary liability to access providers that would follow a diligent search according to criteria defined by the directive. This closely mirrors the solution proposed by Loren:
I propose an immunity from monetary liability for entities that act as responsible ‘special forces’ and free hostage works so long as the entity satisfies two criteria. First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. [â€¦] Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.(p.27)
This last part of her argument is really interesting and goes beyond what has been proposed so far. The open access requirement for freed hostage works not only prevents freed hostages from being monopolized by another entity, it also underlines the public service nature of the act of freeing such works:
The requirement of providing open access to the work is a way to ensure the public benefit in return for granting a reduction in liability. In a quid pro quo arrangement that is a familiar way to think about the exclusive rights granted by intellectual property protections, I suggest that the public benefit is best accomplished by a requirement to provide a open access copy of the work with attached information concerning the copyright and copyright owner status.(p.27)
The argument brought forward by Loren of linking open access versions together with the information gathered in the process of trying to identify the rights holders is not only essential to solving the hostage works problem, it also points to a new role for cultural heritage institutions in the digital environment:
The information that is gathered and disclosed by the special forces in connection with the open access copy must not be subject to claims of exclusivity. For example, that data should be released under express conditions of no assertion of ownership in that information. This type of metadata must be freely and widely available for re-use. One way to satisfy this important responsibility would be to employ the Creative Commons Zero Universal Public Domain Dedication, a legal tool developed to make data available without restrictions on re-use.
Requiring public disclosure of the hostage freeing information permits inspection by others, and may, in fact, lead to the identification of the copyright owner. If that occurs, that copyright owner should then be able to have the provenance information corrected and, if the owner desires, have that work removed from the open access repository. (p.35)
The required infrastructure for this is of course already in place. Over the last couple of years the European Commission has invested millions of Euros into Europeana, a platform that can provide access to open access copies of liberated hostage works as well as the related hostage freeing information.
The only piece of the puzzle outlined by Pallas Loren that is currently missing is the political will to enact legislation that is focussed on liberating the vast amounts of works held by publicly funded memory institutions that are currently held hostage by copyright. Unfortunately the current legislative proposals seem to be caught up in the 'orphan works' logic and primarily focus on re-uniting these works with their parent-authors. Pallas Loren's paper is a powerful and well-argued reminder why this 'solution' will benefit no-one and how a real solution could look like.