An orphan work is any content produced whose author cannot be easily located. Online, that means ANYTHING. Under the terms of the Orphan Works bill as it stands before U.S. legislators, it would be easy for anybody to willfully orphan anything in order to use it without the knowledge or permission of the author. Your words. Your images. Your videos. Your blog posts. Your stories. Your poetry. If you’re like me, and you earn your living from this stuff, the Orphan Works bill is pretty scary!

I recognize that orphan works is a real problem, and we need workable legislation to solve it. I want it to be easier to use, remix, and republish works by other artists, and there is a genuine problem with regards to real orphan works under strict copyright protection laws.

What is a real orphan work? Work produced by authors who are now dead, for instance. There is a lot of culture tied up in content that was produced by people that really are impossible to find. This is important stuff. All the stuff that was produced before has contributed to our culture, and we should have the ability to share it and continue to benefit from it as a society.

The problem is that content producers (professional writers, photographers, illustrators, designers, etc…) should have the right to benefit financially from their creations. Lawrence Lessig is pretty much the authority on this stuff. He wrote a very famous talk called Free Culture. I love that talk. I have listened to it dozens of times, and shared it repeatedly with everybody who would listen. I wholeheartedly agree with every word of it.

After listening to that talk, you might think that Lawrence Lessig would be a supporter of the Orphan Works act. He is not:

“Against the Orphan Works Act of 2008. (Obviously I’m not keen about the “eternity” part in the petition, but one doesn’t need to support the ultimate ends of an ally to find an ally.) (See also my oped about a month ago.) Almost a decade since the Sonny Bono Copyright Term Extension Act, and we’ve still learned nothing.” - Lawrence Lessig

You see, Lawrence Lessig has a plan to deal with Orphan Works that makes a lot more sense:

“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.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.”

I love this idea. You could even shorten the term. Make it two years. Lower the barrier to Copyright registrations. Make it easy to upload the content you want registered, so we don’t have to mail anything unless it’s really big and it would be easier to ship a hard disk to the Copyright office. Currently, you can register a bunch of works at once — a whole collection of images on a DVD, for instance, but it costs $45, and even that small amount is pretty restrictive — particularly for low-income Americans. Should copyright protection be a privilege enjoyed only by people with money?

My Plan to Solve the Orphan Works Problem:

• All content is automatically and fully protected for two years — and do away with the no statutory damages BS, please.
• After two years, authors may register entire collections of works for continued protection — for $1.
• Registrations must be renewed every 10 years - for $1.
• Content submission can be in the form of a URL. For instance, give them a blog or FTP URL, and the Copyright office should be required to immediately index the content.
• Make it easy to search the Copyright office index of registered works.

Here’s my thinking: The shorter term and publicly searchable archive will encourage authors to register early — and make it easier to find content authors when you need to license content for things like remixes, videos, song covers and other derivative works. Work that isn’t registered within two years automatically falls into the public domain, so that it can continue to enrich our culture.

Registration process: In an ideal world, a content creator could create a user account with the Copyright office, pay a small annual fee, and simply point to a URL of works they want protected — a complete, and automatically growing archive of music, videos, photographs, paintings, etc… all stored online. Something like this could be automatically indexed by the Copyright office daily — imagine — everything you want under copyright protection automatically indexed and searchable via the Copyright office website. This could be a password protected directory on your personal or company website, for instance. Wouldn’t it be great to have your images indexed and protected by the US Copyright Office the day after you create them?

Our government has the opportunity to give creative commerce and culture a huge shot in the arm. We can facilitate the process of finding and licensing content, and at the same time, expand the public domain, and end the problem of orphan works in a manner that protects the rights of content authors.

The US Copyright Office Website could and should be the largest searchable stock archive in the world. It should not be in the business of selling stock, but the metadata for images found in the archive could point to the buying URL on sites like Getty Images or iStockphoto.

Everybody Wins

• Creators are protected.
• Content buyers can find authors.
• Unregistered content enriches our culture through an ever expanding public domain.

Granted, such a system would require a heavy investment in infrastructure, but since the barrier to registration would be significantly lowered, lots more people would register, and as computing clouds get cheaper and cheaper to maintain, in the long run, the registration process will pay for itself.

To learn more about the Orphan Works issue, check out these videos: