Little Orphan Artworks

Details

Author(s):
  • Lawrence Lessig
Publish Date:
May 20, 2008
Publication Title:
New York Times, May, 20, 2008
Format:
Op-Ed or Opinion Piece
Citation(s):
  • Lawrence Lessig, Little Orphan Artworks, New York Times, May, 20, 2008.

Abstract

Lawrence Lessig wrote an op-ed on “orphan works” for the New York Times. The following is an excerpt:

CONGRESS is considering a major reform of copyright law intended to solve the problem of “orphan works” — those works whose owner cannot be found. This “reform” would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.

The problem of orphan works is real. It was caused by a fundamental shift in the architecture of copyright law. Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. 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.

The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately. The Congressional Research Service has estimated that just 2 percent of copyrighted works that are 55 to 75 years old retain any commercial value. Yet the system maintains no registry of copyright owners nor of entities from which permission to use a copyrighted work can be sought. The consequence has been that an extraordinary chunk of culture gets mired in unnecessary copyright regulation.

Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. 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.

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.