Europe Pushing For An Orphan Works Law Also

from the will-it-get-done? dept

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.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, europe, orphan works


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    _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.

    link to this | view in thread ]

  2. identicon
    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".

    link to this | view in thread ]

  3. identicon
    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).

    link to this | view in thread ]

  4. identicon
    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.

    link to this | view in thread ]

  5. icon
    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).

    link to this | view in thread ]

  6. identicon
    me2, 2 Sep 2009 @ 5:19am

    Re: Err AC enter your name ..

    Yeah, what he said

    link to this | view in thread ]

  7. identicon
    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.

    link to this | view in thread ]

  8. identicon
    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.

    link to this | view in thread ]

  9. icon
    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]

    link to this | view in thread ]

  10. icon
    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?

    link to this | view in thread ]

  11. identicon
    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.

    link to this | view in thread ]


Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.