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Lessig on the Proposed Orphaned Works Act: ?Unfair and Unwise?

By Ashby Jones

If you manage to check out one item this week on copyright law (excepting, of course, any copyright posts that show up here on the Law Blog), we’d encourage you to check out Larry Lessig’s op-ed in today’s NYT on the proposed Orphaned Works Act being kicked around Congress. To our minds, the piece was clear, persuasive and — perhaps most importantly — relatively short.

Congress is considering solving the problem of “orphan works,” works whose owner can’t be found. Lessig argues that the reform “would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.”

The current bill pending before Congress, which Lessig calls “unfair and unwise,” would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. The problem, explains Lessig, is that it’s unclear precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great.

So what should Congress do? Lessig suggests taking a page out of the patent-law books: Congress should require a copyright owner to register a work after an initial 14-year 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.”

LB Readers, any copyright experts care to weigh in here? Anyone agree? Disagree?

Full post as published by Law Blog - WSJ.com on May 20, 2008 (boomark / email).