Re: what are orphan works?

On 9/28/09, joseph harris <[email protected]> wrote:
>
>  From: "Erica Frank"
>
>  > If they were published in the US, and weren't re-registered with the
>  > US copyright office 28 years (+/-1) after their original publication,
>  > those are in the public domain.
>
> First my thanks to the replies to my original post. These all have interesting points and
> certainly show problems to be solved. On that I agree entirely. [Do not be fooled that Google is
> your answer though; better I don't expand on this now ;-)!]

I love what Google's attempting to do--create a huge archive of
out-of-print works for research and entertainment purposes. I think
the details of their methods have some serious flaws.

>  Erica,
>
>  Do be careful with your assumptions about copyright and public domain. The changes in US
> copyright law are a messy tangle at best. And from around 1960 it is far safer to assume all
> books are covered by current law.

Yep. For US publications:
Pre-1923: Public domain.
1923-1963: Copyrighted only if renewed 28 years after publication,
with a grace period of about a year, so it could be anywhere from
27-29 years after publication. Otherwise, has fallen into the public
domain.

The problem: Must know the name of the author or other rightsholder to
check this. Must get access to copyright archives; there's a copy
online at Gutenberg
(http://onlinebooks.library.upenn.edu/webbin/gutbook/lookup?num=11800)
but it doesn't promise to be definitive.

1963 & later: Currently in copyright.

New, non-gov't content will start being added to the public domain in
the US in 2018. Unless, of course, Disney's lawyers succeed in another
assault on Congress. Or unless someone manages to push the law the
other direction, and either decrease copyrights to sensible lengths,
or roll back the enhancements, and announce that works are now
copyrighted for the length of times in effect when they were
published, because that length of time was obviously long enough to
encourage publication.

> In any case, Jon's list are of UK published works. It is a long time since the US ignored rights
> in other countries.

I think I'll leave that one alone, and grant that the US does have a
policy of at least attempting to comply with _copy_rights in other
countries.

> UK copyright has followed Berne for well over a hundred years. The US is
> also now fully a signatory to Berne.

I'm less conscious of UK law, but I try to keep somewhat aware of it.
I do know that books published in the 60s (and any other books by the
same author) will be covered by copyright law in the UK for a very
long time to come. (The Wikipedia page at
http://en.wikipedia.org/wiki/Cecil_Street indicates that many of his
books were published in the US, and therefore might be in the public
domain here.)

In the case of these books, it's possible that "orphan works"
legislation would not help--the name of the copyright owner is known,
and his heir/s could be findable.

>  I believe it is a mistake to try to make just a single law to cover all IP, or for the US - or any
> other country - to act alone.

Or perhaps copyright law needs a different focus entirely--one based
on commercial infringement issues (which was the reason it was
created) rather than "copies," which are now produced as a side-effect
of communication.

>  I actually don't understand Beth's experience. Once a book is sold under normal contract
> conditions the copy is the property of the buyer, not the rights owner.

I gather that the bookstore was unwilling to make unlicensed copies of
some chapters, even for educational use--fearing that such use might
not be considered "fair use" by a court, if the rightsholder ever
noticed and cared to complain about it.

The students were, of course, free to purchase the book new or
used--if they could find copies available for sale.

>  Erica's list of published works that would need special treatment is long and I would agree
> would include a large number - though I don't know what percentage of each kind of work - of
> works that could be preserved only by some pre-emptive action.

Most of what I mentioned doesn't need special action to preserve,
except that there are often few copies available, and they are
languishing in attics and storage lockers, and occasionally thrown out
as trash.

The editor of a college newsletter from the mid-70's might've kept
three years' worth of issues, but when he died in 2004, his wife may
have thrown them out when she cleared the house for sale. Those
newsletters don't need any special preservation techniques--but
someone would need to keep them out of the paper recycling center.

> Again I see the case for a specific law addressed to the problem. I do not think it wisdom to
> make a blanket law though, even if the individual details of the IP affected could be in one Act.

In the US, a blanket law dealing with *unregistered* orphan works
could be very useful. A lot of people aren't aware that every word put
to paper, every photograph taken, every word or song recorded after
1978 is copyrighted. (Every email. Every twitter tweet.)

I like the idea of requiring registration after a certain number of
years--maybe 10 or 15. Anything that wasn't worth re-registering at
that point, could fall into the public domain.

I also like the idea of scaled registration costs: first reg $35 (or
whatever); re-reg after 30 years for $100; re-reg after 10 more years
for $500; after 10 more years for $1000; after 10 more for $5000, and
so on.

Really valuable IP would be re-registered; most works would drop into
the public domain after 30 years.

>  The problem with all this, the other side of the coin, is the risk to legitimately copyright works
> where the owners can be easily found, and where they do no wish their material to be put back
> on the market, or maybe not even preserved.

In the US, they have no right to prevent their works from being
preserved. They can refuse to allow copies made for preservation
purposes (maybe), but they can't require that their works not be saved
until they fall into the public domain.


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