How Out Of Control Copyright Law Is Keeping Millions Of Books & Images Away From Scholars
from the tragedy-of-orphan-works dept
The text of the "Copyright Clause" of the Constitution famously reads: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.If you're familiar with the history of the clause, you would know that (contrary to what many people believe), the "science" part was for copyright and "useful arts" was intended for patents. And, by "science," what was really meant was knowledge and learning. That's why it's especially distressing when we see reports of copyright law doing the exact opposite, and actively hindering the progress of knowledge and learning.
The Chronicle of Higher Education has a good article discussing how massive fears about copyright infringement lawsuits over "orphan works" means that various universities are refusing to digitize and make available millions of works that could be quite useful and beneficial to scholars and to wider culture. It's a massive shame.
If you're familiar with the debate over "orphan works," there isn't much new here, but it is a good summary. It also notes the crux of the problem: the massively shortsighted decision by the US government (at the urging of foreign countries) to switch from an opt-in copyright system with a 28-year renewal period, to an "everything is automatically covered for copyright for ridiculous lengths of time way beyond any single lifetime." Under the old system, most content was never covered by copyright and went straight into the public domain. Of those works that were covered by copyright, the vast majority of them went into the public domain after 28 years, when the rightsholder chose not to renew. Under the new system... every one of those works, most of which are "forgotten" are covered for copyright well beyond the time when most of us will have ceased breathing.
Of course, rather than realize this massive mistake and seek ways to go back to a more reasonable system, all that's happened are attempts to patch over the mistake with specific, narrowly focused "orphan works" laws. These are supported by almost everyone -- including traditional copyright maximalists, such as the US Copyright Office. But there's one group who seems to oppose them with insane vigor: photographers. Every time an orphan works bill comes close to getting attention, photographers go nuts, and make all sorts of simply untrue claims about how an orphan works bill is about letting people "steal" their works. But, Congress always backs down, and what we're left with is millions of works locked up so that they can't be a part of our culture and can't be used for academic purposes because of a horrible decision made by the US government, and continued because some photographers can't take the time to understand the actual issue.
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If they want their photographs protected by copyright, they could simply submit them, pay the fee and they would be covered. Anyone who wanted to use their work would be able to do a quick search for the photo in the US Copyright office and be able to get all the information they need to contact the copyright holder.
There would be no widespread "stealing" of photos because there would be no reason to.
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Or...something. Hey, I'm just drawing the logical conclusion here, don't blame me.
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Now, how easy that system is to search is something I don't know, but I have my doubts that a government-created database would be particularly easy or good at finding what you're looking for.
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Re: by securing for limited Times to Authors and Inventors
it does not say anything about the Authors heirs.
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Photographers are the easiest target of orphaned works fraud
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Re: Photographers are the easiest target of orphaned works fraud
But it would be just as easy to fight that in court. And stripping the EXIF info would likely cause the judge to side with the plaintiff that your use of the photo was malicious infringement (because you went out of your way to strip the EXIF info.) If you just uploaded it with the EXIF intact, it would be easier to claim "I didn't know" and just pay the author for its use.
Then again...there are so many orphaned and neglected works out there due to Disney. Find a photo that isn't part of the GETTY collection from the 40s/50s and you likely have an orphaned work.
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Re: Photographers are the easiest target of orphaned works fraud
Of course, there is no evidence of anyone ever doing this.
Furthermore, I think you'd have to do more than present lack of EXIF data to claim a work is "orphaned." All the various bills have a requirement that the people who use the work make a good-faith effort to discover the copyright holder and contact them, including contacting the Copyright Office. I think a few have had time limits as well, meaning a work isn't "orphaned" until after a significant amount of time has passed since it was first published.
Of course, even those bills have been killed because of photographers' (and others') freak-outs.
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These so called orphan works are a red herring. Clearly if there was enough interest in the works originally, there would be plenty of copies of the books around. Just check a copy out of the library and enjoy reading it. I know it's a little old fashioned, but nobody is stopping anyone from using existing copies of the works as they have always been used.
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Exactly! The only art worth anything is ART WITH MONEY ON IT!!!
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If there is one book printed, there is likely more, because the amount of time end effort required, especially for older books, to typeset and print the book would suggest that multiple copies would be made.
Unless we are experiencing a Fahrenheit 451 moment in history, I would say that the Orphan Works situation is rather overblown, likely by people trying to find back door ways to blow out copyright as a whole.
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Did you even hear the news about the massive jazz library that was found, but can't be made available because of poor orphaned work laws and poor copyright laws in general?
There is also the case with recent materials such as video games. There are thousands of old video games for old systems such as the Apple II and the Commodore 64 that have no clear copyright owner which makes it difficult for people to find and make available these games.
It is a real problem and needs a real solution.
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When it comes to the jazz library, the same thing applies. Any existing copies could be sold and sold under the first sale rights, but without clear control, little can be done to move the works to the public.
Without a clear copyright holder, it isn't clear why the works wouldn't be made available, unless someone controls them and makes that choice. They have that option because (remarkably) they own them. If they felt otherwise, they could sell the recordings to someone else and they could take the risks of making them public once again.
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Let's go with the video game aspect. How many working Apple II's and Commodore 64's are there? Not as many as there were during their actual life span. If someone wanted to play games from those days, they would have to find a working computer, then find the games they wanted to play. Both are not easy feats. Both can be simply overcome by the use of emulators and digital copies of the games. But since those games are still under copyright, neither the emulator nor the digital copies of the games can legally be made.
Now, since most of the games made in those days were made by companies that no longer exist either through various mergers or general failure, it is difficult to impossible to track down the copyright owners. In a large number of cases the actual copyright owner does not know they own the copyright.
So for all intents and purposes, these games are "orphaned"
This applies to all media. The actual useable supply of first sale covered copies dwindles as time goes on. It is a known fact that books can be damaged beyond repair. It is a known fact that cds become scratched or cracked. Same for all physical medium we stored copyrighted works on. If there is no person known who controls the copyright to a work, how can we make new copies of a work?
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If I understand the digital universe view of things correctly, anyone with a single copy can make an infinite number, so the copyright issues aren't really relevant when it comes to individual game players. After all, if you are willing to ignore copyright to play Need For Speed version 96 or whatever they are up to, then you shouldn't have a problem making copies for a game that has not apparently copyright owner.
By your logic, Apple and Commodore should be forced to make enough hardware to support the very limited demand for their old computers, as it is clear that failing to sell them and failing to license them to someone else to build would be denying us our cultural rights.
Orphan works will fall out of copyright at the same speed that the other works did. Would you feel the same way if a copyright holder was standing there saying no, rather than just the law of the land saying it?
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It is a difficult situation. The government artificially made it much more difficult for the public to legally retain them through the enactment of nefarious laws.
"If I understand the digital universe view of things correctly, anyone with a single copy can make an infinite number"
What you keep overlooking is that if copy protection laws have their way, this isn't true.
"By your logic, Apple and Commodore should be forced to make enough hardware to support the very limited demand for their old computers, as it is clear that failing to sell them and failing to license them to someone else to build would be denying us our cultural rights."
Many of the patents on that hardware likely expired, or will expire in the not so distant future, in which case Apple wouldn't need to license them for people to freely make copies.
and that's the whole point. The monopoly holder shouldn't need to license anything for others to freely make copies. People should be allowed to freely make copies as they please.
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You make the fallacy of assuming that just because originals haven't been retained over time, few people were and will continue to be interested in the works in the future.
Your assumption shows a very very poor understanding of history and it lacks basic logic and common sense.
Most retained historical documents that were originally written a very very long time ago aren't originals, they're copies. and people did have plenty of interest in them at the time they were written and they continue to have interest in them today. and there are plenty of historical documents that were written a long time ago that people were very interested in and that current generations would continue to be interested in that simply never made it to the present time for whatever reason (some of which were referenced in other historical documents that did make it).
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and that right there is one of our problems. We have clueless, selfish, meritless, and stupid lawyers writing our laws, ones who clearly have no understanding of history, culture, or anything other than their own selfishness.
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There is no requirement in the law to keep things, to retain them, or to perpetuate them. People can choose to destroy everything including an original, and you get no choice.
That these things are being held safe for future generations (when their copyright expires) should be more than satisfactory for everyone involved. After all, if there was an active copyright holder involved, there would be no discussion, even if they were being held away from public view.
It's just poor logic.
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Again, you continue to discuss what the law says and not what the law should be when what we're discussing is what the law should be, and not just what the law is. Your basic incompetence makes it difficult for anyone to take you seriously.
"People can choose to destroy everything including an original, and you get no choice."
and people should be able to choose to freely make copies, and you get no choice.
"That these things are being held safe for future generations"
The point is that they are not always being held safe for future generations.
"(when their copyright expires)"
If their copy protection ever expires (ie: doesn't get extended) and if originals are available by then to make copies from.
"should be more than satisfactory for everyone involved."
Why should it be? It's not. Just because it's satisfactory to you doesn't make it satisfactory to everyone involved. It's not satisfactory to me, and it shouldn't be, there is no good reason why I should be deprived of my inherit right to freely copy things as I please.
"After all, if there was an active copyright holder involved, there would be no discussion, even if they were being held away from public view."
Why would there be no discussion? I'm here to discuss it, so there is a discussion, which makes you wrong as usual.
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No, that is your argument.
Our argument is that Apple and Commodore are required to do nothing, except allow others (at their own expense) to rescue games that only have a "limited demand."
Also, the entire purpose of copyright law is "to make a copyrighted work available" for public use. When copyright law does the opposite, it is acting against the very reason it exists in the first place.
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All works will come out of copyright after the same length of time, regardless of ownership. If things had not been moved into the public domain or released with a CC style license, you need to accept that no matter what your personal desire is, you have to respect the contract made via copyright.
Respecting the law is sort of a good idea. Without that respect, we aren't far from failing completely.
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If you define orphan works this way, then clearly it's not a major problem. However, you're the only one using that definition.
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That's an interesting idea. I'm glad you brought it up.
What is the qualitative difference between burning a book, and locking way the knowledge in that book so no one can get at it for longer than they will be alive?
I don't see any difference.
I guess that means we are in "a Farenheit 451 moment." I guess its just ironic that its actually book publishers that are behind it.
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Do you really think they are holding the original manuscripts?
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Copyright is not about allowing the owners to choose not to share a book. It's about promoting the progress and expanding the public domain. If you want to make it about anything else then I say we abolish these laws.
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And that is why today's copyright law is exactly like burning a book and destroying the knowledge contained within.
If I'm not being clear: Copyright law = burning books
There used to be a balance between a copyright owner and the public. In order to promote the creation of new works and knowledge, the creator was given a short monopoly on it, after which the public got complete access to it to use however they wanted. The public has been completed eliminated from copyright law now, and that's not what the writers of our Constitution intended.
Do you really think they are holding the original manuscripts?
I couldn't care less about what is "original" and what is a copy.
Ideas and knowledge being infinitely copyable is a wonderful thing. Unless you're a lawyer who makes money off artificially limiting who can access it - in that case, its a horrible thing which needs to be burned and destroyed.
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Originals deteriorate over time. There are also original transfer costs. The costs of selling the book, finding someone else who wants an original, finding the book, merely being aware that the book exists and that it might interest someone and the cost of not having that book widely available to know of its existence, thanks to copy protection laws. Making that book widely available on search engines will give it a wider audience allowing for more who might be interested in the book to discover it. Some people may throw away originals without bothering to try and sell them, which may prevent a potential buyer from getting access to that book. If there are only ten originals in circulation and twenty people want either an original or a copy, then not everyone can have access to the information in that book. Some people may never get the opportunity to get access to that book. Such is a tragedy that copyright was never intended to cause.
There is harm in preventing us from copying.
"The owner of the book has rights granted under copyright that allow them to do many things with the book. If they choose to do what owners can do, that is to say not share it with anyone, there is no way legally to force them to do it."
We all understand what the law currently is, you incompetent fool, what we're discussing are the changes to the law that need to be made. The current state of law says little about an ideal state of law. Our current state of law is not ideal by any stretch of the imagination. Please, keep up, and stop looking stupid by mentioning the current state of law as if we don't know it or as if the current state of law somehow changes an ideal state of law. It only makes people take your position less seriously.
Copyright abolition doesn't force the owner to do anything. Copyright is what forces others not to copy. No one is entitled to force others not to copy.
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Ding. Ding. Ding. You just summarized one of the dominant themes on techdirt. Any lopsided, hyper-narrow or hyper-broad point of view will do, just so long as the message is that copyright is bad. God forbid an issue actually get even treatment.
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Knowledge should not be lost just because people want to lock it up.
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Your argument goes both ways. If nobody is interested in it, why does it matter if it is made available? You wouldn't want somebody to get interested in it would you?
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The quality of originals deteriorate over time. The number of originals will invariably decrease as a function of time. To deny future generations samples of previous works just because not enough originals were made to allow for some original to survive for an indefinite period of time is criminal at best. It denies the future a more detailed view of the past for no good reason whatsoever other than the pretext that some IP maximists wants to make money off of a monopoly that they're not entitled to.
No one is entitled to a monopoly on anything. I say we abolish these laws.
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but once it is made available, there should be no legal requirement to prevent it from being freely copied by others.
"Clearly if there was enough interest in the works originally, there would be plenty of copies of the books around."
and how is this so clear? There are plenty of older manuscripts that were referenced by other manuscripts that are around, which people did have interest in, yet those referenced manuscripts are no longer around. So much history about ancient civilizations is lost, information that current generations are interested in and information that people of those generations were very likely to be interested in as well, yet we no longer have access to that information. Archeologists wouldn't be spending so much time digging for information on ancient civilizations if there was no interest. There is plenty of interest yet plenty of ancient documents and writings have been lost over time. Clearly, you lack an understanding of history and how much information has been lost to history.
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Actually you are wrong. In the UK you are required to deposit one copy of every book published in the copyright libraries.
http://en.wikipedia.org/wiki/National_library#Legal_deposit_and_copyright
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Response to: Anonymous Coward on Jun 13th, 2011 @ 8:02am
Already librarians talk about the 20th century black hole, the fact that stuff up to 1922 is readily available but stuff from post 1923 can be very hard to get hold of.
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Citation?
Is there, say, a photographer's union that supports legislation that acts as quantifiable data for saying they're against orphan works?
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Re: Citation?
http://www.stockartistsalliance.org/orphan-works
http://www.apanational.com/i4a/pages/Inde x.cfm?pageID=3864
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
http://asmp.org/articles/orphan-works.html
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Re: Citation?
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Thanks for the info, though. :)
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The needs of the many out weigh the needs of the few
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Re: The needs of the many out weigh the needs of the few
Ask Michael Jackson on that one.
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Separate out the problem area
The problem, specifically, is that the bills have specified something like "party that wants to use/republish the work has to try to find out who the owner is, then if they can't find the owner they get to use it". But there is no good way to search for photos, and would-be exploiters could simply choose not to even make a good-faith effort, then the photographers would have difficulty winning lawsuits even if they found out about the infringement (the token search would be a defense for the infringer).
So the obvious solution, of course, is to simply separate out the photographs category and make a law for books, films and music recordings, where an orphan works bill is more suitable.
All these areas need much more fundamental reform, but at least an orphan works bill would be a step in the right direction.
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Re: Separate out the problem area
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Trouble is...
That and of course corporate lobbies to extend the definition of "limited time" so that they'd never have to see their inventions actually subject to the intended terms of the Copyright and Patent provisions.
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The current length of copyright is in fact limited. The Constitution does not say that it must be limited to the author's life. Even under the very first copyright laws, if the author died while holding a copyright, the right was not extinguished. It matters not that it persists past the author's lifetime since the property rights to the work devolve with the rest of the author's patrimony. This is so for the simple reason that copyright rights are property. Of course, the copyright rights are transferable, so it may not even be the author who holds the rights once transferred. The Court is very deferential to whatever copyright laws Congress creates because Congress is exercising one of its enumerated rights under Article I when they enact copyright laws. And as much as the copyright abolitionists hate it (although even Lessig admitted it), the Court has noted that the "to promote the progress" preamble to the Copyright Clause is not a substantive limit on Congress's power to enact copyright laws. If you're looking to the courts to abolish copyright, you're looking to the wrong branch of government.
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Eldred Vs Ashcroft
. One of the arguments supporting the act was the life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever," any limit set by Congress can be deemed constitutional.
Yeah, how that makes sense I have no idea.
"...This is so for the simple reason that copyright rights are property. "
They are not. You're confusing property rights with copyrights. Copyright means *nothing* when it's not enforced. It comes more from a moral view or a Libertarian/Objectivist view that you "own your labor".
You can own a book, you can hold tangible goods in your hand. But while you have a copyright on the words _in_ a book, you can not control what someone does of their copy of it. If they choose to give away a pdf, how can you stop them? If you have a contract with a publisher to pay you .003% for every sale of a book, they could renege on the contract on your death. NOTHING in copyright means you control where or how someone else chooses to either pay you or decide how much they will pay you for a work.
"Of course, the copyright rights are transferable, so it may not even be the author who holds the rights once transferred."
This is contestable because of the likes of Mitch Glazier (work for hire fiasco) and how the RIAA has used this transferance of copyright to further their monopoly of traditional music channels. The same applies in movies and publishing, where most people are VERY hesitant to use the internet in a stunted need to further this idea that copyright is absolutely needed.
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The Eldred ruling addresses it, sorta:
http://www.copyright.gov/docs/eldredd1.pdf
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Disney . . .
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Baby photos
Not one photographer is interested. They all want to charge around �800 for the shoot, provide me with one print and retain the copyright.
They generally seem to think that they should be paid for the shoot and be able to sell the pictures again for commercial purposes. The very thought of even giving me the copyright scares them in case I should choose to sell the pictures that I'd already have paid for!
I want them in public domain so that my kid can upload them to a website without fear of a lawsuit when he's older!
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Re: Baby photos
The sheer gall of them makes me livid...
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Response to Certain Anonymous Cowards, and an Example of a Scarce Published Work.
As I am a pack-rat, I have a few collections pertaining to grassroots computer clubs, consisting of mimeographed newsletters and similar documents, a stack of 8-1/2 X 11 papers about three inches thick, dealing with (a) the Sanyo National Users Group, run by a man named Michael Russel, of Pullman, Washington; (b) Acorn, The Greater Cincinnati IBM PC Users Group; and (c) the New York Sanyo Users Group.
(I should explain that a Sanyo 550 was a type of personal computer, built around an Intel 8088 processor. It was "sort of" compatible with the original IBM PC, but not entirely so. However, a Sanyo 550 cost considerably less, mostly because it did some things in software that the PC did in hardware, and had fewer components in consequence.)
I don't know whether I have the only surviving copies of these papers or not. Furthermore, what I have is not enough to write a full book chapter from. I asked around about the possibility of locating papers of other, similar, organizations, but that seemed a bit problematic. I corresponded with Brewster Kahle at the Internet Archive some years ago about this issue. He couldn't help me, though he said that they have a good set of early Usenet posts. However, that, unfortunately, is something rather different. Usenet people were not the same kind of people as the people who joined local grassroots user groups. Being able to access Usenet implied being at a much higher level than the people who were still learning to use computers.
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it's all a bid by big companies to take from the little guys and make an easy buck. All it ever was, and all it ever will be. As Lessig put it, how to make alot of money without an "extrordinary burden" (the possibility of the schmuck copyright holder expecting to be paid for HIS IP that say, a huge internet search engine wanted to use to sell ads AND to license for their co. gain). IF people think the photogs/artists/writers/etc are greedy, wait until you get to license IP (you could have got cheaper from the owner) from say, a company similar to oh, google. One who also has the legal where with all to sue the pants over any minor infraction.
As always, there's no free lunch - somebody pays. This is just resulting in a alot of lost art/photography (the eye candy of the net) being left in "the cookie jar" under password protected sites. Sites people will have to "qualify" to even access in order to even view a lot of IP.
Whether this is the greater intention or not, this is where we're headed because a few folks thought they could buy the right to legally steal IP, or at least lessen the penalties to the point it was no longer feasible for rightful owners to protect IP.
The creative IP is just a much more valuable commodity with the growth of the net.
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What's the "this" you're referring to? It's clear you're a big fan of IP privilegs and not so much of Google, but other than that I'm having a hard time figuring out your comment.
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