US Copyright Office's Proposal On Orphan Works Wouldn't Be Allowed If TPP Is Ratified
from the such-a-mess dept
We've been pointing out for ages that, contrary to what some claim, one of the biggest problems with including things like copyright and patents in international trade agreements like the TPP and TTIP is that it effectively binds Congress' hands, by blocking them from fixing problems associated with those laws. We've highlighted in the past, for example, how the currently leaked draft of the TPP's intellectual property section would require copyright terms to be at least life plus 70 years, which goes directly against what even the Copyright Office's boss, Maria Pallante, has been arguing for, in terms of (finally) reducing copyright terms for the first time, ever.Here's yet another example. We already wrote about the Copyright Office's (somewhat problematic) proposal on "orphan works" (a problem that is actually caused by moving away from a "formalities" system that requires registration). However, as Jamie Love at KEI points out, the Copyright Office's own proposed legislation, would flat out contradict the language currently found in the leaked TPP intellectual property chapter.
Specifically, the so-called "orphan works" legislation being pushed by the Copyright Office would limit remedies, including possible compensation or injunctive relief, in certain specific instances for those who make use of "orphaned" works. Yet, the TPP requires that signatories offer monetary damages and injunctive relief to anyone whose work is infringed.
Thus, the Copyright Office's own proposed regulations wouldn't be allowed if the US signs the TPP or would lead to the risk that the US would face challenges either under the WTO or a corporate sovereignty (ISDS) tribunal for failing to adhere to the rules that it agreed to in that trade agreement.
Defenders of the TPP and TTIP insist that neither will change US copyright law as it stands today, but we keep finding examples of where it would bar changes that even the Copyright Office is advocating for. The Copyright Office is supposed to be working closely with the USTR on these agreements, but this raises some serious questions about whether the left hand has any idea what the right hand is doing.
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Filed Under: copyright, orphan works, tpp
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dumb, dumb, dumb
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Re: dumb, dumb, dumb
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Orphan works
Digital formats - which orphaned works usually concern - however, are impervious. They can be copied ad infinitum, and preserved theoretically forever. I create digital art, and it's rather inspiring and uplifting to think that generations after I leave this world, my work will still be available for others to enjoy.
So it's saddening to think that due to current copyright rules, no-one will probably be able to use or host what I do until 2150, regardless of whether I say it's public domain or not. No-one will know who the copyright 'belongs' to or who to ask. No-one will want to take a risk that I'll rise from my grave or my grandkids or some random company will claim they infringed upon my work.
I never thought I'd say this, but copyright should be a 'register it or lose it' thing. And maybe orphaned works, abandonware, etc. should be afforded legal protections if the defendant can show they made a good faith effort to do the right thing.
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Re: Orphan works
To a large extent orphaned works are on paper, where the publisher has ceased to exist. Also, digital copies actually have a lower lifetime than paper, as formats and media change, the ability to read old media dies along with the electronics capable of reading it.
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Re: Re: Orphan works
Yes, specific recordings die over time, but the data is immortal. Text, images, audio and video can be copied from one recording format to another with no loss in quality. And while companies occasionally stop supporting some old data formats, you can almost always find a program to read them. I have a couple programs that will read and display images native to the Commodore 64.
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Re: Re: Re: Orphan works
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Re: Orphan works
Affordable legal protection? Every copyright is only as good as how much as you have to defend it. Of course money doe snot mean much in some cases. Just ask Microsoft about how they did with winning cases against Chinese firms in a Chinese court in a country where 98% of all software is pirated.
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Re: Re: Orphan works
Register the ones that are important to you and let the rest go.
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Re: Re: Orphan works
That's the way it used to be, boy.
"As a digital artist who also utilizes public domain vintage items from my personal collection I can easily create hundreds of new works a day. Even if registration was free it would be a nightmare and costly affair to actually register these works."
You'd actually have to do some paperwork?
Wimp.
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Re: Re: Orphan works
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Re: Re: Orphan works
That gives you an idea as to their worth then.
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Re: Orphan works
Depends on how they're stored.
I have several hundred MBs of material on SyQuests...and my personal drive no longer works.
How do I read them?
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Is this what they want?
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That said, one course that this provision could leave open is legislation to introduce the ability to revoke a copyright if a work is orphaned (and to declare it permanently in the public domain). Revoking the copyright wouldn't violate the requirement that copyrights be lifetime + 70, but would allow these works to be preserved and built on. Not that I expect this kind of legislation to pass any time soon...
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Orphan works TPP
"Each Party shall provide that in civil judicial proceedings its judicial authorities have at least the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity."
The key limitation here is the language "who knowingly, or with reasonable grounds to know, engaged in infringing activity." Under the Copyright Office orphan works report, a good faith user of an orphan work who complies with the safe harbor due diligence and usage process should not be deemed to be acting "knowingly" with respect to infringing activity. So this can be rationalized.
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Re: Orphan works TPP
The problem with this is that it requires a judgement call on the part of the courts. Which means that there is nothing to stop copyright holders from dragging people into court by claiming that their use of a work was not in good faith. When that happens are you going to defend these people for free?
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There should be a max number of years something can be copyrighted for companies (100?). It should be non-transferable and belong to either an individual or a company until its death and not a day longer since it cannot be passed on. There is no possible reason to do otherwise.
Orphan'd works and works a company no longer makes money off and you cannot find new since they do not produce it ( like ancient video games ) should also lose protections. Give a work 10-20 yrs of auto-protection then either you are making money off your work (at least offering it for sale) and keep the copyright or you lose it.
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There should be a max number of years something can be copyrighted for companies (100?). It should be non-transferable and belong to either an individual or a company until its death and not a day longer since it cannot be passed on. There is no possible reason to do otherwise.
Orphan'd works and works a company no longer makes money off and you cannot find new since they do not produce it ( like ancient video games ) should also lose protections. Give a work 10-20 yrs of auto-protection then either you are making money off your work (at least offering it for sale) and keep the copyright or you lose it.
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Re:
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The Problem Still Isn't Fixed
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