How Big An Issue Are Orphan Works?
from the longing-for-a-public-domain dept
For a few years now, there's been an effort underway to pass "orphan works" legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the "problem" of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn't an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such "formalities" (even if it goes against the sadly out of date Berne Convention rules).In the meantime, though, since that doesn't seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it's really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can't just declare the the copyright holder can't be found.
Of course, another complaint against orphan works legislation is that orphan works really aren't much of a problem, as they're somewhat "rare." How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive:
- 3 million orphan books
- 129,000 orphan films (potentially up to 225,000)
- 17 million photographs
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Filed Under: copyright, orphan works
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Right(!)
I own what I create, thank you very much, and the day that changes, I stop creating. No way am I going to go through blood, sweat and tears, financial investments and hundreds and hundreds of man hours to produce something so people like you can just steal it.
No fucking way.
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Sorry, I must be shouting because I disagree with you.
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then once you are there, then you can start to talk about orphan works. right now because of the disparities in the laws, it is hard to tell what is even really orphaned, and what is already in the public domain.
fix problem a, and then address problem b. its how to actually get things moving.
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IMHO, the biggest. Culture should not be blocked or made to disappear (as, for example, many films do if there's no commercial incentive to restore the volatile nitrate print) so that somebody else can make some money.
I still think that copyright should be limited to around 20 year, with the option for an owner to renew. That way, Disney gets to keep theirs, while works from long-dead competitors can still be seen. Copyright for longer periods, especially that which is automatically applied for decades after the owner's death, is ridiculous and extremely damaging to all but a few corportations.
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but that would partly defeat the purpose of retroactive copy protection extensions. If anyone's previous works were released it would compete with newer works including the newer works of Disney. Can't have that, it's bad for big business.
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Don't go down this road
Even with the requirement for an exhaustive search, the danger is that it's still possible to miss the copyright holder by not looking in the right place. For example a local photographer who sells his work in a store, doesn't publish on the Internet, his work is sold on to another and so on and the trace is lost back to the copyright owner.
For a modern example, someone publishes on Flickr, someone else steals the photo (has happened to me) and it gets copied around with the link to the original copyright owner lost. It then becomes an Orphan work, a company takes ownership and uses it for commercial use, the original copyright owner finds it being used and has no rights.
Orphan works also affect derivatives. Someone takes your photo to use in a derived form, and again it's possible to right grab the copyright because you can claim you can't find the original source. The Internet is full of derivatives (a large proportion illegal, though the US throws around "fair use" as an excuse, which is a concept we Brits don't have in copyright law).
It's far too easy for corporates to put in place enough documentation with ticks in boxes to claim they have done a thorough search, for example by having a fixed list of sources they would traditionally search, which of course misses out anyone who doesn't use those sources.
Don't do it. Learn from the UK.
http://www.stop43.org.uk/pages/pages/read_more.html
The better option is as proposed by groups in the UK, is to offer true orphan works as a cultural use and open non-profit public domain work.
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If you want to maintain income from and control of, work that you have published then you need to be prepared to make some effort to establish your rights.
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simple solution: don't re-assign copyright on orphaned works. if you get a work declared orphaned, then it's public domain. end of story.
getting orphaned works into the public domain is always good. legal machinations to hijack rights to works is always bad.
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Public Domain?
While that may be true, I'm still concerned that the company who performs this copyright search on an orphan work (for example Google in the case of GoogleBooks) would become the new copyright holder for that work. Those works should enter the public domain if the copyright holder cannot be found where they can be used by anyone.
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that is a concern, which is why a work that is declared orphaned should always become public domain, rather than a copyrighted work with a new owner.
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http://www.techdirt.com/articles/20100419/0051419072.shtml
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Ha!
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I think the issue of orphan works is an important one
http://martinbudden.wordpress.com/2009/09/09/digital-britain-report-and-orphan-works/
In the UK, the DEB attempted to address the issue of orphan works, unfortunately this was an ill-thought out proposal.
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i.e. $10 for the first ten years, $100 for the second ten, $1,000, $10,000, $100,000 and so on.
If the copyright holder feels they can still make money on older material, they can pay to renew it. Otherwise they can surrender the work to the public domain. Therefore the copyright would only last as long as the copyright holder felt it was going to be profitable, without the incentive to cling to older works for revenue that we have now. It would encourage new work without discouraging a long-term business model.
It's likely most public domain works end up completely forgotten about. A smaller percentage ends up in museums, libraries, and archives. Very little is picked up by seedy businesses trying to make a buck on freely available material. Consider how many books in the public domain are not available from any publisher today - there is only a sliver of pre-20th century material of interest to anyone today. How many of the books and CDs produced today will still be available in 90 years, yet they'll still be under copyright - no doubt completely neglected and forgotten because of copyright.
The vast majority of 20th century culture is simply not very valuable and is often disregarded even by its creators. There's no financial incentive to make them available to the public, and copyright prevents the sharing and discovery of these works, many of which end up as orphans. They languish in the netherworld of unaccounted for art because nobody can copy them or even preserve them in a digital archive.
At least with a renewal system, Disney could still hang onto Mickey Mouse without hijacking all of our cultural heritage.
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A new Revenue Source
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No you are wrong. It does not discriminate between the "little guy" and major corporations. It distinguishes between the very small number of really valuable copyrights and the rest.
Besides which the so called "little guy" is unlikely still to be alive by the time the fees become significant - whereas corporations can live forever. So in that sense it discriminates against corporations.
Your post is yet another example of the kind of poverty pleading rubbish that the copyright lobby has been putting out for 300 years.
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To All those who say "What? too lazy?"
There's also the problem of if I can't contact people for a week because the power went down, someone wants to use my work, and they wait a week and receive no reply, they can claim the work is in the public domain and use it, which means I can't get the copyright back once I get back online and find that a work I'd rather not be used by anybody is being used.
Now before you respond with the typical, "You should have more than one mode of contact." Let me ask you, do you want to put all your email accounts, cellphone numbers, house phone numbers, and mailing address out online for EVERYONE to see?
I know I don't.
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