Sunday, April 10, 2011

Orphan Works

Judge Denny Chin threw out the Google Book Settlement, and commentators write lines such as
"The Dream Is Dead". It wasn't a particularly honorable dream, was it?
Part of the problem is the jingoistic implied assumption about orphan works.

According to Wikipedia, "An orphan work is a copyrighted work for which the copyright owner cannot be contacted."

Outgoing Register of Copyrights, MaryBeth Peters opined in 2008
Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages.  I do not agree.  First, all of these remedies will remain available (to the extent they apply in the first place) if the copyright owner exists and is findable. 

Well, "being findable" is open to abuse, isn't it? 
The week before last, EBay treated a class of 14,000 mostly American romance authors' e-books, and also a class of 17,000 mostly living American authors e-books as orphan works.

On EBay, iOffer, file-sharing sites, on Googlegroups, Yahoogroups, Facebook, Twitter, Social Go, Picasa, and all around the world, authors' works are treated as orphan works, and are published and distributed for fun and profit. (Usually, EBay at least closes the auctions once authors complain and prove who they are and complain again, but hundreds of sales remain as done deals.)

Are we findable? Are you findable?
Almost everyone is "findable", no thanks to Intellius, Spokeo, Zabasearch and their ilk.... as long as we're
only trying to protect the rights of our countrymen.

Even so, British and Portuguese and Californian Ebayers (and many others) shrug off complaints of copyright infringement in their auctions, with excuses such as "I've never heard of these authors," and "Those books are freely available online, so why shouldn't I burn them onto a CD and sell them?"

The problem is, finding authors is a nuisance. Getting in touch, and getting a response can take precious time.

Another problem for authors is that the "available remedies" are prohibitively expensive. 
Have you ever tried to pursue a lawsuit in a foreign country, even one that is a signatory to Berne? 
Have you tried to hire a copyright lawyer in your own country? If you don't have a professional relationship, it could cost you a $5,000 retainer simply to open a case!

Is a debut ebook author who sells her self-published romances on Amazon for $2.99 going to be able to justify the cost of asserting her rights, knowing that actual damages will cost less than the lawyer, and 
statutory damages, if awarded, will mean bad publicity?
The e-book pirates know that. One of them even wrote a guide about it on EBay,
I'm starting to hear that some perfectly findable authors are seeing their (Not!!) "orphan works" being uploaded on Amazon's DTP program, and sold by strangers.

The rot has spread.

A recent NYT Editorial applauded Judge Denny Chin's decision.

However, the writer suggests "Congress, meanwhile, can resolve the problem of orphan books. In 2008, it almost passed a bill that would allow anybody to digitize orphan works without fear of being sued for copyright infringement as long as they proved that they had tried to find the rights’ holder. This would give all comers similar legal protection to that which Google got in its agreement."

I ask you, How would we (Americans or Britons) feel if Baidu in China --or any other search engine-- did as Google and the Libraries did? How would we feel if the works of any American author who did not follow the news in Chinese were to be legally considered "orphan works"?

If I received an email in Chinese from a scrupulous Chinese digital publisher, would I read and respond to it?
Would it be reasonable to expect every working author to cut and paste every foreign language "spam" filter message to an online Translate site?

I cannot recall if the Google Settlement assumed that all foreign-authored works were "orphan", but digital works can be published worldwide, yet national lawmakers only protect their own author citizens. (Or don't!)

For example, the British Public Lending Right only pays a small royalty on British Library loans to resident British authors, who can produce a street address and a recent utility bill with their own name and address on it. Presumably, books by all other authors in the world are loaned out without any PLR payments made by the British lending libraries.
Judge Denny Chin's "Opt-in" recommendation is the only honorable way to go.

Scott Turow's letter to the NYT is published here:

The New York Times editorial is here.

EBay guides

All the best,

Rowena Cherry

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