Europe Pushing For An Orphan Works Law Also

from the will-it-get-done? dept

Tue, Sep 1st 2009 8:15pm — Mike Masnick

Many in the US have been pushing for an "orphan works" law for quite some time -- which would create an exception for copyright infringement if the owner of a work simply can't be found. It's difficult to find any serious reason why an orphan works exception shouldn't be included in copyright law as written, but there are always some who pop up as being against it -- usually because they don't understand what it is (there are some who seem to be purposely spreading misinformation about orphan works bills). Thus, it continually fails to move forward in the US -- even as politicians insist it's necessary. It looks like Europe may be going down the same route these days, as it's now looking at creating an orphan works law as well. Now we'll see if it faces the same misguided opposition.

Still, as William Patry notes in his book, the real shame is that the whole reason we need an orphan works bill in the first place is due to how screwed up copyright law has become since switching from a "formalities" approach to one where everything is automatically covered by copyright. Under the old system (pre-1976 Act in the US), in order to get a copyright, you had to register, and then at certain points, re-register it, to have and keep it covered by copyright. Thus, any such "orphan" works fell into the public domain after a short period of time -- and it worked fine. There was no "orphan works" problem, because those works that no longer that weren't being used for commercial purposes went into the public domain in a relatively short period of time. The most amazing thing, though, is that very few of those supporting orphan works legislation seem to recognize that the whole "problem" is one they made themselves by extending insanely long copyrights to pretty much everything.

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Filed Under: copyright, europe, orphan works

11 Comments

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_skhn (profile), 1 Sep 2009 @ 8:43pm

I wonder how a system where copyright lasted for 5 years initially and thereafter every two years the owner had to pay 2x the previous registration/continuance fee would work out...

If a registration were initially $100, by 31 years of copyright renewal would cost 3.2 million or so...
Though it would stay under 100 grand for the first 20 - 25 years.

Would give more benefits of protection to more "sellable" and successful registrations, others it wouldn't be worth the cost and they'd just expire really quick.
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Anonymous Coward, 1 Sep 2009 @ 9:59pm

You may also want to mention that another important formality under at least the Copyright Act of 1909, the act replaced by the Copyright Act of 1976 as currently amended, that copyright notice was the mechanism the general public was informed of copyright claims. As a general rule (there were very limited exceptions), publication without such a notice was tantamount to a work being dedicated to the public domain.

In the interest of candor, the 1976 act did carry over the requirement of notice, but the requirement was tossed aside in 1989 when the US agreed to accede to the provisions of the Berne Convention of 1887 (or thereabout).

Mr. Patry and I are in total agreement that the removal of aubstantially all formalities was a step backward. Just as persons seeking patents are required to comply with a whole host of formalities, I see no good reason for copyrights to somehow get a "bye".
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Anonymous Coward, 1 Sep 2009 @ 10:03pm

"The most amazing thing, though, is that very few of those supporting orphan works legislation seem to recognize that the whole "problem" is one they made themselves by extending insanely long copyrights to pretty much everything." I already explained why the length of intellectual property is way too long Here (Aug 26th, 2009 @ 4:14am).
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Pete Austin, 2 Sep 2009 @ 2:35am

Why people oppose an "orphan works" bill
It increases the amount of literature in circulation, so if you're a publisher of below-average crap, then clearly the extra competition will be bad for your profits.
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Yeebok (profile), 2 Sep 2009 @ 3:46am

Err AC enter your name ..
Comment 2, Anonymous Coward :
"Mr. Patry and I are in total agreement"
So who the hell are you ? (probably more accurate why do you think you're important?)

Comment 3, are you the same person ?

I really think the sooner society gets over this 'me too' mentality we'll be a hell of a lot better off. The biggest problem with patents and IP is that it's totally unnecessary. It's just a way for people to get money (which really, humans could manage without and we'd probably have a lot less problems).
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me2, 2 Sep 2009 @ 5:19am

Re: Err AC enter your name ..
Yeah, what he said
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Anonymous Coward, 2 Sep 2009 @ 9:41am

Re: Err AC enter your name ..
"So who the hell are you ? (probably more accurate why do you think you're important?)"

Obviously someone much more familiar than you about the metes and bounds of copyright law, and one with whom Mr. Patry has indeed stated we are in agreement that the loss of formalities in the name of international hormonization was a step backwards for copyright law in the United States.

Perhaps the better question is why you choose to focus on the identity of a commentor and not on his comments. You seem to elevate the irrelevant to a position higher than substantive matters.
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Adam Higerd, 2 Sep 2009 @ 9:47am

"Formality" copyrights
I can't say that the concept of automatically copyrighting things is bad. Before the new system, authors were paranoid and went through all sorts of hoops to protect their work before they had a chance to publish it -- until then, anyone could take it, tweak it, and beat them to market, because without the copyright it was difficult to prove that you owned the work. It also pushed out those who were just getting started, as it required money and work to register a copyright. The automatic copyright idea is easily the best thing to happen for independent small creators.

Copyright EXTENSION, really, is the problem. When the creator no longer cares about the work -- perhaps by virtue of being dead -- the material is essentially lost. No one can use it. That's what orphan works laws are for, and that's why it's important.
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ChurchHatesTucker (profile), 2 Sep 2009 @ 10:31am

Re: "Formality" copyrights
"I can't say that the concept of automatically copyrighting things is bad. Before the new system, authors were paranoid and went through all sorts of hoops to protect their work before they had a chance to publish it "

[citation needed]
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Matt (profile), 2 Sep 2009 @ 11:13am

Re: "Formality" copyrights
Here here. If copyright is advisable (big if,) rigid formalities are probably bad. There frankly is little need for a bright-line rule. Instead, second-users should be held to a reasonability standard in determining whether authors have opted in to copyright. In other words, only punish culpable infringement.

In any event, the two prior questions are more important - is copyright valuable? If so, what is an appropriate term of copyright?
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Anonymous Coward, 2 Sep 2009 @ 2:00pm

Re: "Formality" copyrights
Pre-1976 (actually 1/1/78 when the legislation went into effect) federal copyright did not come to the fore until publication. Prior to publication copyright was generally a matter for the states. For example, California had a pre-publication copyright law that in many respects mirrored that of federal law.

Thus, there were few, if any, hoops for an author to jump through prior to publication.
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