Kidnapped

Ursula K. Le Guin -- Photo by Marian Wood KolischYou know those poor orphans starving in the snow on your doorstep that Google wants to put to work for Corpocracy Inc? Well, the Brits are after them too. Parliament is considering an “enterprise regulatory reform” bill containing extremely permissive provisions concerning “orphan works.”

What is an “orphan work’? The definition is pretty clear: a copyrighted work (most often a book, story, or photograph) for which the “parent” — the author or copyright holder — cannot be located.

Finding a copyright is easy: the Copyright Office has it on file. Finding copyright holders (heirs who don’t know they’re heirs, etc.) can take time. It’s not always quick and easy to identify an orphan as such.

And here’s where the definition is vulnerable to deliberate manipulation and obfuscation. (I like that word, obfuscation — “making dark.”)

 ~~~

The operative term is cannot be located— which does not mean “hasn’t been found,” or “nobody bothered to look for.”

Increasingly often books are called “orphans” just because nobody is bothering to locate the copyright holder, or even make a copyright search. If stringent requirements for identification aren’t upheld, anyone who wants to exploit the rights to an older work can, after the most cursory search for the copyright holder or no search at all, just declare the book, the story, the photograph “orphaned.”

And if this practice isn’t questioned, they can go ahead without concern for copyright, reproducing and exploiting the so-called “orphan.”

It’s not an orphan at all. It’s been kidnapped.

By now kidnapped works probably far outnumber genuinely orphaned ones. The Google Book Settlement allowed Google to declare books orphaned with little or no pretense of search and then reproduce them busily, steadily, and no doubt profitably. The Internet makes it incredibly easy to do so. The U.S. Copyright Office has generally failed or refused to interfere, leaving the entire onus of proof that the work is protected by copyright to the individual author.

 ~~~

Now the Brits are trying to legalize this injustice — a dangerous precedent for decisions yet to be made in the U.S. And worse yet, if Parliament passes the bill, many American works published on both sides of the Atlantic will be misidentified as “orphaned,” scanned and put online by British libraries and others without the permission of the digital rights holder.

Once that happens, you might as well kiss your copyright goodbye. Your book has not only been kidnapped, but handed over to the pirates. As Parliament lurches along hand in hand with Blind Pugh and Long John Silver, somebody else will be burying your treasure. Arr, arr. Isn’t that funny?

At this point, most of the organized opposition in the U.K. is coming from photographers, photo licensing agencies, distributors of news photographs. This also happened in the U.S. in 2008, when photographers got together and stopped “orphan works” legislation in Congress.

It’s hard to understand why writers, who are just as directly affected, are hard to stir up on this issue. Maybe we’ve had copyright so long that we thought it was genetic, or something?

What’s happening is that the Corpocracy — first Disney, then Google, to be followed by Amazon and the rest — has been working for over ten years now to dismantle copyright in practice and destroy it in principle — and to get government sanction for doing so.

Copyright Office seems to be paralyzed; the Department of Justice is looking away; the present Congress is hardly likely to protect art or artists against corporate greed. It’s up to us, the artists, the photographers, the writers, to defend our rights.

At this point, I don’t know any organization working to co-ordinate us into an effective movement except the National Writers Union. However you feel about unions in general, if you’re a writer of any kind, you might look into this one. It’s small, it’s active, and it’s on our side. Nobody much else is.

— UKL
21 January 2013

Here are some useful links:

Two British resistance websites —

Encouraging information here:

In the U.S., the National Writers Union statement opposing the British legislation is at:

And here is the NWU’s warning about what the British bill can do to American properties. It ain’t pretty.

  1. Violate the obligations of the U.K., pursuant to the Berne Convention, with respect to the rights of authors of works first published in the U.S. and elsewhere outside the U.K.;
  2. Misidentify many works first published in the U.S. and other countries — particularly works simultaneously published in multiple countries, U.K. editions of works previously published in different editions in the U.S., and works first published online on servers in the U.S. — as having been first published in the U.K. and as being  “orphan works”;
  3. Authorize reproduction and use of U.S. and other foreign works without the permission of the author (or other holder of the particular rights being exploited) in ways that interfere with the  “normal commercial exploitation” of rights to those works; and
  4. Impose burdensome “opt out” and/or  “claim” requirements, constituting “formalities” prohibited by the Berne Convention, on foreign authors who do not want our work included or authorized for reproduction or use through “orphan works” or ECL schemes. (The costs which would be imposed by these proposals on authors, whether in the UK or abroad, of searching lists of works to which some of the rights had provisionally been identified as “orphaned”, are entirely omitted from the Impact Assessment prepared by the IPO, even though these costs would manifestly be the largest category of costs imposed by the “orphan works” scheme.)

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About Ursula K. Le Guin

Ursula K. Le Guin is a founding member of Book View Cafe. Her recent books include The Unreal and the Real: Selected Stories and Finding My Elegy: New and Selected Poems: 1960-2010. King Dog: A Screenplay for the Mind's Eye, Music and Poetry of the Kesh, music by Todd Barton, words by Ursula K. Le Guin, an MP3 collection, and “The New Atlantis” are available in the Book View Cafe ebookstore.
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8 Responses to Kidnapped

  1. Pingback: State Sponsored Piracy | Cheryl's Mewsings

  2. Debbie Moorhouse says:

    Has this surfaced again? Gah.

  3. Diane Gurman says:

    A few notes in response:
    First, finding a copyright is not always easy. Since March 1, 1989, neither registration nor notice of copyright have been required in order for a work to be protected by copyright law.
    Even for those works that have been registered, another difficulty lies in the fact that not all copyright registration records have been digitized. This means that if you want to find a non-digitized record you must travel to Washington, D.C. and pay a staff member to conduct a search of the paper records. And that is just the first step, before you even start to search for a living rightsholder (whether person or corporate representative).

    Second, not all orphans are books. University and college libraries, and libraries in general, acquire materials such as manuscripts, photographs, and recordings, many or most of which can be classified as orphans. The donor or seller may not own the copyright or know who does. Historical archival and library material such as photographs, diaries, recordings, personal papers, and architectural drawings are often unsigned and unattributed, making it impossible or nearly impossible to search for and identify the copyright owner. Further, many documents found in archive and manuscript collections were created anonymously. Ephemera and materials such as notes, while often of unique research and teaching value, are also typically unsigned and therefore in most cases untraceable. Even if authorship is identifiable, it may be difficult if not impossible to either locate or determine when the creators or their heirs died, which is necessary for determining copyright ownership. Those heirs that can be located may not know the copyright status or whether the work was a work for hire and therefore subject to ownership by someone else.

    Finally, those of us who research the rights holders of books work very hard and diligently at our task. We know that a reasonably diligent search is required under best practices guidelines. We also know that we may make mistakes, and so clearly post takedown notices in case a rightsholder turns up. We do not want to use a work without permission unless legally allowed to under fair use law. As for the amount of time it takes to carry out a reasonably diligent search, I’d recommend the study done by Barbara Stratton (“Seeking New Landscapes: A rights clearance study in the context of mass digitization of 140 books published between 1870 and 2010,” British Library Board, 2011), which showed that it took highly experienced researchers an average of four hours per book to undertake a diligent search. Her report also revealed that in many cases no rightsholder was ever found, or, if found, did not respond to a request for permission to digitize the work.

    When a rightsholder cannot be located, most libraries will opt not to digitize or make the work public beyond the four walls of the library for fear of being sued. It’s simply too great a risk. For works long out-of-print and unpublished works of great cultural (though not monetary) value, this is a loss to the public and to the progress of research and learning.

    The U.S. Copyright Office is currently soliciting responses to a Notice of Inquiry on how best to deal with the orphan works problem. If you are interested, the information can be found here: Federal Register/October 22, 2012 (Volume 77, Number 204).

  4. I would also quickly note that those rightsholders who are the most concerned about legislation are, of course, the least likely to have to worry about it. Orphans have better been described in other forums as hostages — hostages to laws developed to protect rightsholders who own commercially valuable copyrighted works. Those who are profiting from — or even remotely, minimally, involved with — their works are associated with their works. Either the association will be identified by researchers, or the association will readily come to light, because libraries and archives are working hard at developing best practices to protect both rightsholders and scholars/creators. In other words — the point of orphan works legislation is not to take Ursula Le Guin’s works, but to, for example, enable a documentary filmmaker to use the archive’s unidentified, uncredited home video showing the construction of a bomb-shelter.

    Orphan works legislation is not designed to take works away from rightsholders who are involved in their works. Orphan works legislation is designed to address the vast, vast majority of copyrighted works that are not and never have been commercially exploited, or that have fallen out of use and knowledge — the “lost classics”, the ephemera, the hidden histories.

    The category of copyrighted works that have never been commercially exploited — perhaps were never intended to be so — is much larger than one might imagine. Since everything now put into print or electron is now automatically copyrighted, all work is under the aegis of copyright law — whether it was ever intended to be commercially distributed or not. That yellow post-it note with your shopping list. Mitt Romney’s etch-a-sketch. The countless emails we all send every day — and don’t forget about our text messages and twitters. We have the genesis of an entire lost history just within this problem alone. In fifty or a hundred years, scholars wishing to work on 20th/21st century history or cultural studies will not have the free and easy recourse to methods available to scholars of ancient or medieval times: Instead, they will have to engage in extensive copyright inquiries, dedicated to finding out who wrote the items? who owns the copyright? when /if they died? (I shudder to think about what life-extension and frozen-head technologies will do to a life+70 years copyright term) what their country of origin was? when or if the item was ever “published”? (is twitter publication?) was it authored by a corporation? did the author assign their copyrights to anyone? did that business ever got bought or sold or fall into bankruptcy? did they die intestate or was their a probation? … ad infinitum. The scholars of the future will be well-versed in the nuances of copyright law.

    Orphan works legislation might help with the problems librarians, scholars, and creators face today (enumerated by my colleague Diane Gurman above) as well as the problems scholars of the future will face. Or it might make them worse, depending on the kind of legislation put into place.

    The one thing it will not do, in any of its forms, is take away work from active or identified rightsholders.

    The Copyright Office will, I know, be very happy to get comments on orphan works and mass digitization projects, from professional creators as well as other scholars. I greatly hope that professional creators will provide constructive suggestions about protecting their rights and interests, while bearing in mind that such legislation is aimed not at the professional creator who intentionally creates, copyrights, and curates their own work — but at the vast majority of works that were incidentally copyrighted and then — well, abandoned, orphaned, and now held hostage by a heedless one-size-fits-all statute.

    • Mike Bradley says:

      “Orphan works legislation is not designed to take works away from rightsholders who are involved in their works. Orphan works legislation is designed to address the vast, vast majority of copyrighted works that are not and never have been commercially exploited, or that have fallen out of use and knowledge — the “lost classics”, the ephemera, the hidden histories. … The one thing [orphan works legislation] will not do, in any of its forms, is take away work from active or identified rightsholders.”

      That’s simply not true. The writer probably believes it sincerely, but copyright is chaotic and unregulated, with the result that there is no way whatsoever of knowing who owns what and whose rights are being violated where. Copyright is not a single right. It is many rights, each and every one of which are sold and resold separately. All the sales are private. Only the parties involved know about them. Only the parties involved know how the works are being used and how much money they’re earning. So when an article appears in Redbook magazine, for instance, there is no knowing which rights Redbook owns, which rights have been sold to someone else, and which rights that someone has resold to yet another someone else. Including, of course, the right to put the article online in other web sites and archives. Only Redbook and the chain of rights buyers know for sure.

      Proponents of what they call “orphan works” ignore the actual buying and selling of the multiple rights to a work and the actual commercial value of the works. They seem to believe that the parties to these private transactions and businesses somehow lose the right to continue to own and profit from what they bought as soon as someone else has a different idea.

      “Those who are profiting from — or even remotely, minimally, involved with — their works are associated with their works.” They aren’t “associated” with the works–they own the rights to use them. They own it, they bought and paid for it, and they do not have to make their ownership public or easily discovered in order to continue owning it.

      “We have the genesis of an entire lost history just within this problem alone. In fifty or a hundred years, scholars wishing to work on 20th/21st century history or cultural studies will not have the free and easy recourse to methods available to scholars of ancient or medieval times.” Wrong. Simply wrong. Orphan works legislation is not about scholarship. There are many, many ways to read and report on works without owning them. In US copyright law, it’s called “fair use.” Scholars can publish excerpts of copyrighted works in order to explain and critique them, artists can mimic copyrighted works in order to mock or honor them, and so on. Libraries can even keep copies of them.

      Orphan works legislation is really about Google and similar web sites copying everything without the bother of determining the fair compensation to the owners of the works. Why compensate them? Because once a work is available free on a major web site, who is going to buy it for their own site? Or their local Sunday supplement? If used cars were available free online, wouldn’t you get all your used cars that way?

  5. Mike Bradley says:

    “What’s happening is that the Corpocracy — first Disney, then Google, to be followed by Amazon and the rest — has been working for over ten years now to dismantle copyright in practice and destroy it in principle”

    Except, of course, for themselves.

    When the European powers colonized the rest of the world, one of the first things they did after overcoming the local military was to overcome the local judiciary. They’d declare all local law and custom illegal and insist that only their own laws applied, which, of course, gave their thievery of the conquered lands, resources and persons the color of law. Corporations are doing the same to individual copyright holders. The corporations have found a way to protect their copyright, such as extending the term of copyright every time Mickey Mouse comes up for expiration, while declaring our protections inapplicable.

    We have to stay vigilant and informed. Get involved!

  6. Aaron says:

    Funny how when it comes to patents and trademarks, the corporations no longer feel so casual about protecting these types of creator’s rights. Is there a legal framework for creating a guild or trust of artists, turning over copyrights to the guild/trust with the agreement that each copyright is under strict exclusive no-fee license to the originators and their heirs? That way there’s a permanent organization that cannot be “lost” to corporations or any others seeking access to materials that have copyrights and that organization can renew copyrights and keep records of their originators (and heirs) in perpetuity. Does this already exist?

  7. Brennan Young says:

    This has passed into law, and has been popularly dubbed “the Instagram Act” unfortunately.

    I share UKL’s concerns, especially when large media organisations such as the bbc and many others routinely strip authorship data from uploaded images. They become a kidnapped works factory.

    The register has run a series of excellent articles on this subject. Here’s the latest one:
    http://www.theregister.co.uk/2013/05/03/instagram_act_explained

    I have no affiliation with the register, I just find journalist Andrew Orlowski’s analysis very convincing, relevant, and consistent with your comments.

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