Re: what are orphan works?

Erica,

Our areas of disagreement are clear enough. But I thought there were one or two points that might be worth a discusssion.

From: "Erica Frank" 
> On 9/28/09, joseph harris <[email protected]> wrote:
>>
>>  From: "Erica Frank"
<snip>
> 
> 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.

Why is this 'obvious'? I have heard of all sorts of delays, for good reason and bad. Thre may be a case for a different approach, as you suggest, but I think a support for the argument is needed. Have you a way of rationalising your views?

>> 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.

Now perhaps. But it really started being really conscious of this only i n the 1970s. And it remains resentful, as shown by the registration system, which is entirely against the spirit of the Berne Convention. Preventing any real enforcement of copyright without prior registration seems quite restrictive.

> 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.

My impression, as with the example books, is that a lot of misunderstanding of this sort exists. There is considerable confusion, which Google adds to as a matter of policy, about orphan works, and whether there is an actual value in wide orphan legislation. It risks undermining the whole copyright structure.

Ther also seems to me to be deliberate obfuscation by arguing a book case, and then using film or audio or music to justify the criticism. The differences between the fields are considerable.

> 
>>  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'm not sure that was the reason. The 1710 Act of Queen Anne changed rights over copies from the printer/publisher to the author. All the commercial points already existed. Remember America was a British Colony [at least the eastern and southern seaboards] upt to the Declaration, and subject to full British law. This was continued mostly in the new laws of the emergent United States. The form of copyright has changed substantially over the years.

The issue over technology is not an arguemnt for ignoring copyright, though there is a need for clear definition of the technical copy in transmision, agaisn the useabl copy.


<snip>
> 
>>  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.

Yes, I've lost a few of my works too!

> 
>> 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.
> 
> 

Actually I think you are factually incorrect. While copyright protection is clear on a published work, an d that enters the public arena, unpublished works are quite different. Many of the ones you mention and things like diaries also have privacy aspects. Copyright is a permissive ;aw for authors, and is not compulsory. Once published of course it is as you say.

Joseph Harris  -  Debt Control Man
author: Control Your Debt Crisis on Your Own Terms
blog: http://debtcontrolman.wordpress.com
http://www.controlyourdebtcrisis.co.uk
debt dictionary: http://www.controlyourdebtcrisis.co.uk/debtwiki/


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