US Copyright Office's Proposal On Orphan Works Wouldn't Be Allowed If TPP Is Ratified

from the such-a-mess dept

Wed, Jun 10th 2015 2:40pm — Mike Masnick

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

20 Comments

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Anonymous Coward, 10 Jun 2015 @ 2:45pm

dumb, dumb, dumb
Why would anyone in their right mind sign something so bad as this treaty? Oh wait I forgot that would require people to read it first.
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That One Guy (profile), 10 Jun 2015 @ 3:03pm

Re: dumb, dumb, dumb
Money, power, lucrative 'retirement' offers... most politicians are for sale, some blatantly so, and a lot of them go for pretty cheap.
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Anonymous Coward, 10 Jun 2015 @ 7:32pm

Orphan works
The thought of "orphaned works" is something I find very sad. As pointed out previously, this is our cultural history. Art, paintings, books from many years ago - we're at risk of losing them. Physical things degrade; they get lost. Paper rots. Paintings fade. In some cases, our history is intentionally destroyed.

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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Anonymous Coward, 11 Jun 2015 @ 1:35am

Re: Orphan works
Digital formats - which orphaned works usually concern - however, are impervious.

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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Anonymous Coward, 11 Jun 2015 @ 2:30am

Re: Orphan works
Register it or loose it? Are you a self made billionaire or something to afford the registration fees alone? 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.

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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Pragmatic, 11 Jun 2015 @ 6:08am

Re: Re: Orphan works
If you take from the public domain you should give back to the public domain. There are other ways to make money from your art than by relying on copyright royalties.

Register the ones that are important to you and let the rest go.
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Anonymous Coward, 11 Jun 2015 @ 6:40am

Re: Orphan works
"Digital formats - which orphaned works usually concern - however, are impervious. They can be copied ad infinitum, and preserved theoretically forever."

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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Anonymous Coward, 11 Jun 2015 @ 6:42am

Re: Re: Orphan works
"Register it or loose it? Are you a self made billionaire or something to afford the registration fees alone?"

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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limbodog (profile), 11 Jun 2015 @ 6:43am

Is this what they want?
I'm not a pirate, and I don't make it a habit to copy works that I haven't paid for, but shit like this makes me want to pirate copies of the entire Disney library.
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Anonymous Coward, 11 Jun 2015 @ 6:52am

First things first, this should be a deal-breaking poison pill. The deal should simply be impossible until this provision (and several others) are completely and unconditionally removed.

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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Seti451, 11 Jun 2015 @ 7:00am

Orphan works TPP
Speaking as a copyright attorney, let's not get crazy here before carefully reading the actual text of the draft TPP clause, which reads:

"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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Rekrul, 11 Jun 2015 @ 8:45am

Re: Re: Orphan works
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.

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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Rekrul, 11 Jun 2015 @ 8:49am

Re: Orphan works TPP
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.

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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jupiterkansas (profile), 11 Jun 2015 @ 9:48am

Re: Re: Orphan works
Are those hundreds of works you create all making you money? If not, why bother to register the copyright? Not everything has to be owned. That's the whole point of a registration system.
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Anonymous Coward, 11 Jun 2015 @ 10:39am

Re: Re: Re: Orphan works
That is all fine for proper archives, but what historians are also interested in is family photo albums, and photos of the town and country. These are highly likely to vanish with the album owner, and there is little chance of them being usable if an old storage device is found in a loft a hundred years or more from now. Also diaries written using proprietary word processors are also very vulnerable to loss if they are not read an rewritten using a current version.
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Anonymous Coward, 14 Jun 2015 @ 9:09am

Re: Re: Orphan works
I can easily create hundreds of new works a day.

That gives you an idea as to their worth then.
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Anonymous Coward, 4 Jul 2015 @ 5:52pm

I believe you have the right to keep people from stealing your work and leaving you penniless, but I also believe once you are done with it then it should be freed of copyright law.

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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Anonymous Coward, 4 Jul 2015 @ 5:52pm

I believe you have the right to keep people from stealing your work and leaving you penniless, but I also believe once you are done with it then it should be freed of copyright law.

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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Anonymous Coward, 4 Jul 2015 @ 5:53pm

Re:
Dag nagit, my finger twitched and now there's 2! Q_Q
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Zack Struver - KEI, 16 Jul 2015 @ 8:57am

The Problem Still Isn't Fixed
KEI has continued to keep in touch with USTR negotiators, and these provisions are still in the TPP. This is one of the most glaring problems in the TPP's IP chapter, and it's shocking that it still isn't fixed. As you rightly point out, this will bind Congress' hands and prevent future fixes to important areas of copyright law. Even if you think that fast track and secret negotiations are a good thing (which they aren't), they certainly weren't intended to be used to undermine the legal traditions of U.S. copyright law and prevent the Copyright Office from doing its job.
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