Today, Creative Commons announced that we will be exploring the idea of a copyright registry.

A registry could solve a variety of problems that we have. For instance, the orphan works problem where it is not clear who to contact in order to commercialize could be solved. A registry facilitates attribution which is a core part of Creative Commons. A registry could also help sites that allow users to post content to clear and clarify rights.

The exact architecture of what a registry system would look like is still not clear and requires a lot of discussion and work. One model is to build on existing registries -- such as that maintained by the copyright office -- rather than trying to develop a completely separate one. Another idea is to create a federation of registries maintained by an network of providers that somehow peer with each other. Because of our experience with machine readable licenses, metadata and creating a global network of compatible license, we believe that we can add value to design and possibly the operation of such a registry system.

I'm sure that the astute readers will notice that in the press release we mention that we will also be exploring revenue generating services that CC might provide. I can imagine that this might raise some red flags for some people so I thought it might be prudent for me to try to explain this aspect a bit more since it involves a number of issues that we've been working on.

When I had a long chat with Pierre Omidyar last year about Creative Commons, one of his suggestions was that he thought that in order for non-profits to be responsive to the public, it was often better for them to be providing some sort of fee-based service instead of just being funded by an endowment or foundations. He explained that when eBay started charging, the community became much more vocal about what they wanted in their feedback and he became much more responsible and responsive to their requests. Offering a service for free is great, but having a paid services creates a more rigorous expectation on both sides of a quality of service and responsiveness. I've been thinking a great deal about this "market sensitivity though fee based value added services" and this is something I think we should continue to explore.

We are currently supported by foundations, corporations and individuals who have generously contributed to the mission of Creative Commons. We have secured an important set of commitments for the next five years which gives us a strong base on which we can build. However, I think that we need to consider augmenting that support with revenues generated by providing value added services.

However, Creative Commons benefits from the broad support of a community of users and contributors who help Creative Commons because it's not a greedy money-making organization. I am acutely aware of the necessity to stay focused on the core mission of providing free and open licensing tools while exploring CC's capacity to provide additional services that will generate revenues to help sustain the free and open sharing infrastructure CC provides. In exploring this possibility, I take it as fundamental that we avoid any action that we might make or be perceived to be making that undermines our position as a balanced, transparent and neutral party.

So, to reiterate what we say in the press release. CC will always continue to provide licenses for free. Also, as we explore the idea of a copyright registry or a network of registries, we will try very hard to participate in a process to design a system that is first and foremost technically and operationally robust. CC will not try to build itself into the system just for the sake of trying to make money. The idea is that IF we find some sort of role for CC such as running a piece of this system or providing a service to the system that users or businesses might pay for, we will explore whether a fee based model makes sense.

9 Comments

As a photographer, I strongly oppose the Orphan Works proposal.

Those in favor of it cite the use of old, forgotten works as the key benefit, but I suspect the people hit hardest will be living creators.

For visual images such as photographs or other digital works, there simply isn't the technology to identify photos or derivative works created using them. You've seen how this happens with images. Take, for example, the "God Kills a Kitten" image that so widely circulated a few years ago via email, blogs and message boards. Let's say that the orphan works legislation becomes law and you want to use that image for a commercial work. Who owns it? How do you diligently seek out the creator?

The source of the image is cited by wikipedia as being a member of Fark.com's forums, but doesn't list which one. An hour or so searching Fark might reveal the user's alias and if the user is still active, you may be able to contact them. It might come out that the user didn't even create the image, just posted something that he or she found somewhere long forgotten.

(Maybe I chose a too-complex example here: Even if he *did* "create" the image, it was most certainly done using images appropriated from other sources: The two images of kittens were likely stock images downloaded from somewhere, the Domokun image either taken from NHK's site or someone's photo of a Domokun doll and the saying itself was taken from a satirical publication produced by students at Georgetown University, in 1996, now offline.)

If the user has dropped offline, you may never be able to trace them. Is that really an orphan work, when the image is done by a living creator, just a few years ago?

In my example, I use a very very famous image. Imagine the complexities involved in seeking out the author of a more obscure image online, one that's been appropriated just a few times, but enough to obfuscate the true source of the image. My own at-risk images mainly fall within this category. (This is happened to me.)

So if you do take the work, believing you've done the requisite checking and believing it to be orphaned and then the creator comes forward after you've spent money on a work that relies upon the image, perhaps paying graphic artists, advertising people, printers, etc. Are you liable for hundreds of thousands in damages? The courts would probably say no, given your lawyer's description of all the steps you took to locate the author, but the author of the image is denied revenue from a valuable work.

That would likely be someone like me—I take a picture and let's say it gets circulated around on blogs and message boards. If a graphic designer at a big advertising agency in New York finds the image and likes it, he or she would be virtually free to use it and basically I would be screwed, unless I had tens of thousands of dollars to fight them in court.

This is simply the wrong way to go about freeing up our cultural history. Copyright reform needs to take place for old works to be freed and this could only fairly occur with shorter copyright limits for unregistered works, not by legitimizing the use of stolen property.

Hey Jim. You're opposing the US Copyright Office proposal on how to deal with Orphan Works right? I don't know if you read Lessig's response to that but I think he's agreeing with you.

The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.

Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.

He suggests that this be applied for old works and that for current works, we implement a registry system.

I hadn't read Lessig's article. We're pretty much in agreement though.

Wouldn't it be better to repeal the last few copyright term extensions, taking us back to 1977, when you did actually need to register copyrights and works fell into the public domain after a more reasonable period?

Doing that would be a far, far better solution than supporting this flawed bill with even the best-intentioned of registries.

My fear is that I'll need to register every single image I've ever taken and will take in the future, just to get myself the same legal protection that I have right now, where my work is my exclusive property simply because I alone created it.

This pushes the barriers of the creator to own his own work just a little bit higher, too, more towards protecting rich, technology-enabled creators and leaving poor or less-savvy artists with fewer rights. Right now, you don't need to maintain a computer with an Internet connection to own the rights to your creations. Believe it or not, there are many important creators who do not use the Internet. An acquaintance of mine here in Tokyo, Donald Richie, comes to mind. He's been writing, photographing and filming Japan actively since 1947 and has no interest in getting connected to the Internet. Does this mean he'll lose the rights to his work because someone scanned a photo or passage from one of his books and posted it without attribution? What about the millions of other, less-well-known creators of works who don't use the Internet? They're out there and they don't deserve to have their rights stripped away.

We're in the very beginning of the user-created-content boom. It's no accident that this legislation is being considered now, as it's little more than a way for corporations with extensive resources to make a free usage rights grab on this vast pool of unprotectable content. In no way should reasonable people support this.

Why too, are the registries being done privately? The US Government had been registering copyrights for a couple hundred years. Is their way of acknowledging their own incompetence to do a registry? To remove their accountability?
Another worry is that I may register all of my work with a registry and perhaps that registry ceases to exist in a few years. Do I lose all of my protection?

No thank you.

This legislation must be defeated as it is written now. CC should not act as enablers for a broken plan.

I also think that it would be better to repeal the last few copyright term extensions, but we've tried that argument and lost. I think we should continue to argue that copyright terms should be shorter.

I think the reason we are considering private registries is that they could probably be done more cheaply than by the government. Right now it costs $35 to register something with the US copyright office. I could imagine that if we built it into a blogging service as a premium service, we could probably do it much much more cheaply. It's possible that one architecture would be that then the service negotiates with the US copyright office and registers all of the works in bulk with the copyright office. Another would be that it would maintain its own registry and somehow peer with other registries. I think that competition could drive down costs and provide more innovation than leaving it up to just governments as well.

I agree that we would need to provide a system for backups in case of failure of copyright registries of course.

James Duncan Davidson writes about all the steps and the expense he goes through to register his photos for copyright

http://duncandavidson.com/2008/04/the-copyright-conspiracy.html

If you could set up a system that was easier and cheaper, you might even win over some photographers who are critical of creative commons.

It might be good to different pricing for individuals, artists, non-profits & educational institutions, and businesses.

Your idea can never work, it is fundamentally flawed. It is broken as designed for two reasons:

1. Its mere existence is an incentive to fraud. If the registry is implemented, it will instantly be flooded with fraudulent claims of copyright. I have a major article on this subject that will be published in a week or two, so I will say no more for now.

2. There is already such a registry, here in the USA it's the Library of Congress. Copyrights are government granted monopolies, only governments can grant such a monopoly. Whatever CC does will be irrelevant.

@Charles: I think you point out some interesting challenges that CC will need to address and figure out solutions for as they continue to *explore* this registry idea. I have no doubt that the good folks at CC are smart enough to figure something out, especially with such fine, outspoken visionaries as yourself pointing out flaws as they come up!
:)

I look forward to reading the article Charles.

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