How Big An Issue Are Orphan Works?

from the longing-for-a-public-domain dept

Mon, Jul 12th 2010 11:11pm — Mike Masnick

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 So, a better fix would be to go back to requiring such "formalities" (even if it goes against the sadly out of date Berne Convention rules).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

The report also mentions that 95% of newspapers from before 1912 are orphans, which seemed odd to me, since it seemed like anything published in 1912 should be in the public domain. The report notes that this is actually part of the problem, since copyright status depends on a variety of factors, and even works from pre-1912 may still be under copyright in Europe. As it notes "only material from as far as pre-1870 may relatively safely be assumed to be in the public domain."

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Filed Under: copyright, orphan works

34 Comments

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Anonymous Coward, 12 Jul 2010 @ 11:34pm

it sounds like they are playing games to make things worse than they are. i wonder what percentage of the works falls in the space between 1870 and 1912? without knowing the difference, it is hard to tell the real scale of the issue. if a significant percentage of the issue could be fixed by merely cleaning up the laws in various countries to make 1912 the magic date, why not do it that way?
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Anonymous Coward, 12 Jul 2010 @ 11:42pm

Re:
1912, what the heck. That's way too old, everything before 2000 should be in the public domain already. Copy protection laws last WAY too long. Remember, nobody owes you a monopoly on anything and art and music and content will be created perfectly fine, and even better, without these laws than with.
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Anonymous Coward, 12 Jul 2010 @ 11:56pm

Re:
BTW, it's comments like this that reveal the true intent of IP laws and convince me that they need to be abolished.

Sorry, I must be shouting because I disagree with you.
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Anonymous Coward, 13 Jul 2010 @ 12:01am

and what about out of print books covered by copy protection laws? What if 1000 copies were sold, the book goes out of print, and later on an additional 200 people decide they want the book. Now 1200 people want the book but only 1000 can have it, how is the government empowered monopolized market going to ensure that all 1200 people get the book?
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Anonymous Coward, 13 Jul 2010 @ 12:01am

Re: Re:
nope, i respect your point of view, but i think you misread my comments. step 1 is to get everything even (if 1912 is the magic date (99 years or whatever they want it to be) then start there and make sure everyone is on the same page, because some appear to be on 140 years. get everyone lined up on that one system to start with, and already you are ahead. there is no simple way for the links to determine the numbers, but that would certainly free up some of the works involved.

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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PaulT (profile), 13 Jul 2010 @ 12:06am

"How Big An Issue Are Orphan Works?"

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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Anonymous Coward, 13 Jul 2010 @ 12:26am

Re:
"That way, Disney gets to keep theirs, while works from long-dead competitors can still be seen"

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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Tim, 13 Jul 2010 @ 12:53am

Don't go down this road
We've just been through this argument in the UK, and defeated it thankfully. What was proposed here was indeed a licence to right grab with little effort required to prove you've searched thoroughly. It was sufficient to just declare you never got a reply from the copyright holder.

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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Anonymous Coward, 13 Jul 2010 @ 1:34am

Re: Don't go down this road
Sounds very nice, I have no sympathy for copyright people and couldn't care less if they get "robbed" by corporations.
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Richard (profile), 13 Jul 2010 @ 4:29am

Re: Don't go down this road
So you are the people that got one of the sensible bits of the DEB pulled. You seem to want to hold the whole of culture hostage just because you can't be bothered to register your work with a licensing agency.

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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Anonymous Coward, 13 Jul 2010 @ 5:08am

It's not just the removal of the renewal requirements that create orphan works, it's the insanely long copyright terms. If I make something at 25 and have a child then, and live to 75 (with a child born every 25 years), my great, great, great grandchild can be 20 when it runs out. It's almost 5 generations later that the copyright will run out.
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Comboman (profile), 13 Jul 2010 @ 5:14am

Public Domain?
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.

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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Anonymous Coward, 13 Jul 2010 @ 6:11am

Remove the retired RIAA executives from the copyright board and maybe we will get fair copyright laws. the gig is rigged and as such is a worthless system.
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Anonymous Coward, 13 Jul 2010 @ 6:15am

Re: Re: Don't go down this road
IP maximism is designed for lazy people, what do you expect? They want to make money and not do any work.
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Anonymous Coward, 13 Jul 2010 @ 6:22am

Re: Don't go down this road
Nobody owes you the effort of looking for you before copying your work, yet alone a monopoly to begin with, and the laws need to reflect that. What, too lazy to register your work? If your work isn't worth registering then it's not worth keeping your copy protection privileges.
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Anonymous Coward, 13 Jul 2010 @ 6:25am

Re: Public Domain?
Something similar happened already but I don't want to search for it.
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NullOp, 13 Jul 2010 @ 6:30am

Ha!
Orphan works....shot ourselves in the foot again did we?
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chris (profile), 13 Jul 2010 @ 6:32am

Re: Don't go down this road
What was proposed here was indeed a licence to right grab with little effort required to prove you've searched thoroughly... For a modern example... Orphan works also affect derivatives...

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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chris (profile), 13 Jul 2010 @ 6:34am

Re: 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.

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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Anonymous Coward, 13 Jul 2010 @ 6:35am

Re: Public Domain?
http://www.techdirt.com/articles/20090212/1238593748.shtml
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Anonymous Coward, 13 Jul 2010 @ 6:36am

Re: Re: Public Domain?
Also see

http://www.techdirt.com/articles/20100419/0051419072.shtml
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Spudd86, 13 Jul 2010 @ 7:59am

What about a short term for unregistered copywrite that expires in say 10 or 20 years, then you have to register to get your insanely long term, that should keep the industry lobbyists happy, and put all kinds of stuff in the public domain at the same time
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Anonymous Coward, 13 Jul 2010 @ 8:09am

Re:
The problem is that industry doesn't want anything in the public domain because that means they must compete.
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MartinBudden, 13 Jul 2010 @ 9:47am

I think the issue of orphan works is an important one
I've written about it quite extensively here:

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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Jupiter (profile), 13 Jul 2010 @ 9:53am

You should have to register works you want copyrighted, and you can renew the registration indefinitely, but the costs go up exponentially over time.

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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Lyle, 13 Jul 2010 @ 1:33pm

A new Revenue Source
Since the government needs revenue, change the law to require a fee be paid at publication plus 40 years (or so) and another every 10 years there after. The fee would start at $100 and double every ten years to 100k at 110 years. For disney it would not be a problem and make them pay for the protection. The holder could then decide when the works net present value is less than the fee and by not paying the fee put it in the public domain.
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Anonymous Coward, 13 Jul 2010 @ 6:52pm

Re: A new Revenue Source
not really acceptable, because you are creating a system that would go against the little guy and reward the big companies. inequality in a major, major way.
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Richard (profile), 14 Jul 2010 @ 6:38am

Re: Re: A new Revenue Source
not really acceptable, because you are creating a system that would go against the little guy and reward the big companies. inequality in a major, major way.

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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Hans Christian Vang, 16 Jul 2010 @ 11:02am

Re: Re:
Nobody owes us a monopoly on anything? But I owe you my creative works?

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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Hans Christian Vang, 16 Jul 2010 @ 11:06am

Re: Re: Don't go down this road
Culture has nothing to do with entertainment products. Not a fucking thing. And you most certainly havent got any rights to my work, and that's how it will remain, thank goodness.
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Hans Christian Vang, 16 Jul 2010 @ 11:08am

Re:
We already have fair copyright law. Us creators own our own work. Period. You've no right to my property, and there's no justifiable reason why you SHOULD have a right to what I've created. Get it through your skull.
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Salsa, 15 Nov 2010 @ 3:26pm

To All those who say "What? too lazy?"
I'd like to inform you that databases aren't cheap, the US government is too loose with its money to be able to afford to maintain and update a massive database that contains the contact information and list of copyrighted works that are registered. That means that artists have to pay to register their works and that means that a lot of people on the internet are going to take down their works because they can't afford to register them all. even if it's only two or three dollars to register a work (and I don't see the government giving out bulk discounts) that means that to register the 200 some odd works I have online is going to put me back $400 to $600 dollars, Even if I could afford that, not everyone can.

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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Anonymous Coward, 11 Jul 2012 @ 6:21am

I think this argument will continue to rage for years to come.
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fodder99 (profile), 11 Jul 2012 @ 6:24am

haha, Im not anonymous the comment above is mine... the freakin internet threw a wobbly just as I submitted my thoughts.
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