History Locked Up... Thanks To Copyright

from the too-bad dept

Tue, Jul 1st 2008 6:34am — Mike Masnick

And here's yet another story of important content that could be put to use, unfortunately being totally locked up thanks to copyright. A few readers sent in the story of the Brooklyn Historical Society refusing to let someone putting together a book of photographs of the Canarsie section of Brooklyn use some old, historically relevant, photographs, because of fears over copyright. The photos in question were from well over 100 years ago, and no one has any idea who owns the copyright -- but rather than risk getting sued for infringement, the Historical Society has said no to using the photos in the book. This is the sort of situation that could be solved with orphan works legislation, but there's a vocal contingent of photographers who loudly are attempting to block that legislation, often falsely stating what the orphan works bill would actually allow, claiming that companies will "steal" their photos. So, instead, we sit around, unable to see important historic photos. I'm sure that's what the framers of the Constitution had in mind.

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Filed Under: brooklyn, copyright, history, orphan works, photographs

24 Comments

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Crosbie Fitch (profile), 1 Jul 2008 @ 6:56am

Ghost Works Survey
This is probably of interest to QuestionCopyright's Ghost Works Survey.
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Rob, 1 Jul 2008 @ 7:18am

In Nebraska also
Here at University of Nebraska we are working to have the state historical society allow the Center for Digital Research in the Humanities make relavent state documents public, including major archives from the Union Pacific Railroad from the 1870s. The state archive refuses the University access to scan the documents for fear over copyright and gaining revenue despite the Center's offer to pay for the rights. Very frustrating for us historians who would rather work in a digital medium than a paper one.
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Ima Fish, 1 Jul 2008 @ 7:21am

While I can certainly see the advantages to orphan works legislation I still think it's a bad idea that will put a final nail in the public domain's coffin.

When orphan works legislation is passed, copyright will essentially become a two-tiered system. There will be copyrights where corporations are earning money, e.g., Disney earning money off of Mickey Mouse. And there will be vast numbers of copyrights that do not earn any money, mostly because they never made any money in the first place, so no one ever took the time to remember who owned them.

So the next time there is a discussion in Congress about extending copyright yet again, those against it will argue that it will kill the public domain. And those in favor will point to the orphan works legislation which enables a vast array of formerly copyrighted materials into the public domain.

They'll point to statistics that the public domain is growing exponentially, regardless of the fact that it's mostly content no one wanted in the first place, like family and amateur pictures and forgotten band demos.

If we split copyright into two tiers, we might as well give Disney the perpetual copyright it always wanted.
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Anonymous Coward, 1 Jul 2008 @ 7:36am

This kind of thing is profoundly stupid considering that all works without exception in the US made before 1920 are in the public domain.
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TightenUp, 1 Jul 2008 @ 7:47am

To Ima Fish,

I think you are mixing up two separate issues. Orphaned works legislation does not put anything into the "public domain." It is simply a means of enabling the use of an untraceable piece of work--like a 100 year old photo--until the copyright owner shows up. While something in the public domain is there to stay, an "orphaned" work becomes de-orphaned when the copyright holder shows up.

The hypothetical argument you present would be easily rebutted if it were to come up in court. The next time Mickey Mouse is set to go into the actual public domain, there either will or will not be another extension act based mostly on relative lobbying power and SCOTUS predisposition. Either way, you don't scrap a sensible piece of legislation on the off-chance that certain industries will attempt to construct a weak argument based on it in 10 years.
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Willton, 1 Jul 2008 @ 7:50am

Re:
Agreed. Copyright may need reform, especially with regard to the length of the term, but this story is just an example of stupid historical societies that are afraid to do what they have a clear legal right to do.
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Willton, 1 Jul 2008 @ 7:54am

Re:
Agreed. To further that point, orphaned works typically are not registered in the Copyright Office, so there would be little way for companies such as Disney to track such activity.
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Chris, 1 Jul 2008 @ 8:12am

Re:
Works published before 1923 are public domain (not 1920 as mentioned by A.C.)

Source:

http://www.unc.edu/~unclng/public-d.htm
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Benjamin Unander, 1 Jul 2008 @ 8:59am

such a shame.
This is a tragedy. History belongs to everyone and is the most effective means to preserving a government for the people by the people. We as Americans are very ignorant of much of our nation's history, and perhaps this situation is partly to blame for that. I very much hope that this history society will fulfill its purpose and put out these photos that will serve to enhance our understanding of the time period.
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Anonymous Coward, 1 Jul 2008 @ 9:14am

Copyright is not a Constitutional right.
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PaulT (profile), 1 Jul 2008 @ 9:40am

Re:
I'm not entirely sure you have it right there... When something is in the public domain, it doesn't mean that *nobody* can make money from it, it means that *anyone* can make money from it.

The idea, obviously, is that copyright gives a creator a limited-time exclusive monopoly on a piece of art, after which it's available for anyone to use and/or distribute. *Even if the original creator is untraceable*

"When orphan works legislation is passed, copyright will essentially become a two-tiered system. There will be copyrights where corporations are earning money, e.g., Disney earning money off of Mickey Mouse. And there will be vast numbers of copyrights that do not earn any money, mostly because they never made any money in the first place, so no one ever took the time to remember who owned them."

That's actually why orphan works legislation is necessary right now. There are movies rotting in vaults because there's no commercial incentive to track down the rights and restore them. If they were made public domain, anyone who wished to restore and release them could do so.

For example, the German silent classic Nosferatu has been public domain for decades. That's not only made money for the original creators, but for goth bands who've released DVDs remixing the footage with their own music. Night Of The Living Dead has been released many, many, times over by both the original creators (George A. Romero and John Russo) but by other who have created different cuts, colourised versions, etc. Take also Fritz Lang's Metropolis, whose Tangerine Dream-scored version has probably made as much money in recent years as the original.

"They'll point to statistics that the public domain is growing exponentially, regardless of the fact that it's mostly content no one wanted in the first place, like family and amateur pictures and forgotten band demos."

...and that's complete bullshit. If we were to have kept copyright on movies to its original form, everything from Psycho to The Godfather to Cleopatra would now be public domain. The problem with the current system is that movies which didn't achieve that level of recognition at the time are now disappearing, even though they may have been better films than the blockbusters of the day. Commercial success != quality.
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Anon 2, 1 Jul 2008 @ 10:05am

Constitutional Right
Actually, copyright is a constitutional right. Art. 1, Section 8, Clause 8. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The key here is that this right should be for a "limited time" and not what we are moving to, which is perpetual rights. Limited time, in my view, was intended to grant rights/monopoly to the author/entity to encourage its entry into the public sphere and, eventually, domain so it could be used by all at the end of the term. As is so notably noted by PaulT.

Unfortunately we keep extending and extending this term.
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Crosbie Fitch (profile), 1 Jul 2008 @ 10:46am

Re: Constitutional Right
Actually, copyright is NOT a constitutional right. The US constitution doesn't say anything about creating such a privilege, only the securing of exclusive rights. Such rights must necessarily already exist, i.e. be self-evident. The constitution doesn't create them, it recognises and stipulates their protection.
Just because you enact a privilege and call it a right doesn't make it a right.

See Constituional Sanction for what a constitutional protection of authors' and inventors' exclusive rights would look like.

Authors and Inventors have a natural and self-evident exclusive right to their writings and discoveries WHILST THEY ARE EXCLUSIVE. If those authors and inventors choose to make them non-exclusive by sharing or publishing them, then clearly that natural right has dissolved. Of course, the enactment of copyright may attempt to legislate a continuance where the natural right ceased, but that isn't sanctioned by the constitution. Frankly, it's unethical let alone unconstitutional.
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Willton, 1 Jul 2008 @ 2:15pm

Re: Re: Constitutional Right
Authors and Inventors have a natural and self-evident exclusive right to their writings and discoveries WHILST THEY ARE EXCLUSIVE. If those authors and inventors choose to make them non-exclusive by sharing or publishing them, then clearly that natural right has dissolved. Of course, the enactment of copyright may attempt to legislate a continuance where the natural right ceased, but that isn't sanctioned by the constitution. Frankly, it's unethical let alone unconstitutional.

That's absurd. The concept of copyright predates the Constitution (see the old Statute of Ann), so it's not like copyright is some new concept that the Framers did not have in mind. The Framers were well aware of what a copyright (as well as a patent) is and does, and the fact that the Framers chose to use broader terms than "copyright" or "patent" when drafting the Constitution does not mean that such laws were not contemplated in the Constitution.

Copyright is a statutory right that is explicitly sanctioned by the Constitution. It would be uncommonly silly to think that Art. I Sec. 8 Cl. 8 meant for anything else.
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Crosbie Fitch (profile), 2 Jul 2008 @ 3:08am

Re: Re: Re: Constitutional Right
So, you're making an inference based on a hypothesis of a contemplation? That's even flakier than quibbling about whether 'progress' is an aspiration or a precondition.

The constitution specifies the securing of an exclusive right. This sanctions legislation that recognises and secures this pre-existing right.

It can't possibly be about securing paradoxically pre-existing statutory legislation such as copyright - even if it was observed to pre-exist in Europe.

It doesn't even sanction the creation of such commercial privileges, even if those privileges are then incorrectly termed 'exclusive rights'.

Admittedly, copyright secures an author's exclusive right, but it also grants a commercial privilege of exclusive reproduction to incentivise the release of works from that exclusive right. That privilege, necessarily compromising other citizens' right to liberty, is certainly not sanctioned by the constitution.

So, let's abolish copyright, revise legislation such that it only secures the author's and inventor's exclusive right (without granting them any privilege to incentivise the publication of their work), and restore the people's right to liberty.
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Willton, 2 Jul 2008 @ 6:24am

Re: Re: Re: Re: Constitutional Right
So, you're making an inference based on a hypothesis of a contemplation? That's even flakier than quibbling about whether 'progress' is an aspiration or a precondition.

No, I'm going on a long history of British common law as well as United States federal law, as well as federal case law that confirms it. See Graham v. John Deere, 383 U.S. 1 (1966). You're the one using conjecture to devise your view as to what that clause means, as there's no authority to back up your view.

The constitution specifies the securing of an exclusive right. This sanctions legislation that recognises and secures this pre-existing right.

It can't possibly be about securing paradoxically pre-existing statutory legislation such as copyright - even if it was observed to pre-exist in Europe.

It doesn't even sanction the creation of such commercial privileges, even if those privileges are then incorrectly termed 'exclusive rights'.

From Graham v. John Deere, 383 U.S. 1, 5-6:

At the outset, it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress "To promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries." Art. I, § 8, cl. 8. The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the "useful arts." It was written against the backdrop of the practices -- eventually curtailed by the Statute of Monopolies -- of the Crown in granting monopolies to court favorites in goods or businesses which had long before been enjoyed by the public. See Meinhardt, Inventions, Patents and Monopoly, pp. 30-35 (London, 1946).

In case you didn't know, the original Patent Act of 1790 (you know, the one that grants inventors an exclusive right to their inventions, much like the "unethical" Copyright Act?) was drafted by Thomas Jefferson, one of our country's Founders and primary drafter of Art. I Sec. 8 Cl. 8. If Jefferson did not think that the Constitution sanctioned patent law, I imagine he would not have drafted such law and helped enact it while he was a member of Congress.

This is why your interpretation of the Constitution is absurd. I suggest you educate yourself before you make another statement about what is constitutional and what is not.
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Crosbie Fitch (profile), 2 Jul 2008 @ 8:10am

Re: Re: Re: Re: Re: Constitutional Right
It is a sleight of hand that persuades people that because exclusive privileges stem from exclusive rights that the power to grant those privileges is sanctioned by the power to secure the rights from which they stem. This does not actually follow.

It is also incredibly cheeky to recognise the founders' wish to avoid granting monopolies to court favourites in goods or businesses in the very same breath as claiming they sanctioned the power to grant such monopolies.

You may be offended by a more correct interpretation of the constitution, and find it rather absurd to be at such odds with the conventional interpretation you've accepted for so long, but these things happen. There is understandably intense commercial pressure to maintain the conventional interpretation.
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Willton, 2 Jul 2008 @ 8:51am

Re: Re: Re: Re: Re: Re: Constitutional Right
It is a sleight of hand that persuades people that because exclusive privileges stem from exclusive rights that the power to grant those privileges is sanctioned by the power to secure the rights from which they stem. This does not actually follow.

If that's the case, then you should inform Thomas Jefferson, as he and every other great legal mind in this country's history would disagree with you.

It is also incredibly cheeky to recognise the founders' wish to avoid granting monopolies to court favourites in goods or businesses in the very same breath as claiming they sanctioned the power to grant such monopolies.

And it is incredibly dense of you to not understand that recognising the perils of granting monopolies does not preclude the power to grant such monopolies for a limited purpose.

You may be offended by a more correct interpretation of the constitution, and find it rather absurd to be at such odds with the conventional interpretation you've accepted for so long, but these things happen. There is understandably intense commercial pressure to maintain the conventional interpretation.

Don't assume you have the "more correct interpretation," as your interpretation goes against over 200 years worth of legal precedent interpetting the Constitutional clause that we talk about now. If yours is the "more correct interpretation" of the IP Clause, meaning that your interpretation is what the Founders intended when drafting the Constitution, then our Founders themselves are hypocrites for drafting legislation that contradicts your interpretation. I, however, would find it hard to believe that the Founders would contradict themselves this way.

Here's a challenge to you: write a legal article about your interpretation of Art. I Sec. 8 Cl. 8 and then submit it for review. We'll see how "more correct" you are.
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Willton, 2 Jul 2008 @ 9:22am

Re: Re: Re: Re: Re: Re: Constitutional Right
To further explain how ridiculous your "more correct" interpretation of the IP Clause is, what laws would Congress be able to enact under your construction? If the power to exclude only lasts until you publicize your work, then there's no need to enact any laws protecting that power. Keeping your work secret keeps it out of the public's hands, thereby making it impossible for anyone to infringe upon your rights to the work. What laws could Congress pass to secure your right to exclude if you haven't made your work public? None that I see, aside from some trade secret law that would prevent misappropriation, which has been traditionally left to state legislatures.

In effect, your interpretation of Art. I Sec. 8 Cl. 8 would render it meaningless and forceless: it would be pure rhetoric in a document that purports to grant certain bodies of government certain powers. The Founders would not have included such a clause if that was their intention.
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Crosbie Fitch (profile), 2 Jul 2008 @ 10:09am

Re: Re: Re: Re: Re: Re: Re: Constitutional Right
The securing of exclusive rights means that no-one else has the liberty to search, inspect, reproduce, seize, or otherwise appropriate someone's intellectual property (writings, discoveries, etc.) from their private domain (unless a greater right is at stake, say the right to life), and that restitution and/or penalties may be exacted against those who violate this right.

Without such a securing, authors and inventors would have no protection or remedy against their exclusive writings and discoveries being inspected, copied, or stolen - aside from the paltry value of any material theft.

This exclusive right, applying to mortal authors and inventors, should be limited in time to the normal human lifespan.

Of course, society places a high value on original writings and discoveries, but the ethical encouragement of their publication is exchange in a free market, not the incentive obtained by granting unethical monopolies - no matter how highly prized those monopolies are to those enjoying them.
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Anonymous Coward, 3 Jul 2008 @ 9:42am

Re: Re: Re: Re: Re: Re: Re: Constitutional Right
Here's a challenge to you: write a legal article about your interpretation of Art. I Sec. 8 Cl. 8 and then submit it for review. We'll see how "more correct" you are.
Might big words from some anonymous commenter on a blog. I suggest you do the same.
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Alton Brown, 7 Jul 2008 @ 10:59am

Re: Re: Re: Re: Re: Re: Re: Re: Constitutional Right
What a hoot! Anonymous Coward is upset by a reasonable challenge. Why? Because it is issued by "some anonymous commenter"... who, by the way, posts by name... not that it should matter (a rose is a rose and all that). The aptly named coward is confused by factual information he is unable to refute.
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Sotira, 14 Aug 2008 @ 5:11pm

Orphan Works debate
There is a good debate about this bill on the Myartspace Blog. Brian Sherwin interviewed Alex Curtis from www.publicknowledge.org. PK is really pushing for the bill. Link below.

http://www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html
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