Re: what are orphan works?

From: "Mary E Tyler"
> 
> On Sep 28, 2009, at 1:57 PM, joseph harris wrote:
>>
>> It is highly unlikely that any publisher of the books held rights  
>> for more than about five years, and these would probably have been  
>> renewed for subsequent editions. It might be worth contacting our  
>> National Library to see if there is information on standard  
>> contracts of the period. It is also likely that records of the  
>> publishers exist, and any purchase of the companies should be on  
>> record.
>>
> 
> Joseph,
> 
> This is exactly the problem. Almost no one can afford to take even  
> "highly unlikely" risks when the survival of their business is in the  
> offing. More than an outright prohibition, this is hat you'd call a  
> "chilling effect." It causes publishers to error strongly on the side  
> of caution and not touch ANYTHING that doesn't have complete and  
> ensured provenance. As a practical result--perhaps not a legal or  
> theoretical result, but as a **practical** one--books don't get  
> republished, chapters cannot be used for college classes, and memoirs  
> get lost in the dust of generations where there may be tens if not a  
> hundred or more potential copyright holders. Anyone who has ever does  
> a genealogy can tell you how lost and tangled things can get in even  
> three or four generations.
> 
> The problem that everyone here has in trying to convince you of what  
> is patently obvious is, as we say in science and tech journalism, the  
> plural of "anecdote" is not "data." It's very easy for you to give a  
> pat answer with "highly unlikelies" and "US inheritance laws" but that  
> addresses--and only theoretically, not practically--these anecdotes,  
> NOT the widespread problem.
> 
> Who **knows** how big the orphan works problem IS, except that  
> EVERYONE seems to have an anecdote and there is a consensus among  
> many, many, many people in the business that yes, the preponderance of  
> those anecdotes DO somehow add up to data. It may be that Google,  
> which is one of VERY few entities dealing with orphan works on a grand  
> scale is the only entity with any real data on the scale of the problem.
> 
> The sorry thing is that Congress has not addressed this with  
> meaningful legislation. Under the thumb of the big IP interests--and  
> believe you me, they serve NO ONE but the big money, big Ip interests-- 
> congress has done nothing on what becomes an increasingly more  
> pressing problem. Consensus grows while Disney flies around the  
> capitol shouting "mine mine mine" in the ears of our congressional  
> "representation" like a bunch of gulls raining down money instead of  
> bird shit (gotta love the sly "Nemo" reference there). But the  
> consensus of librarians, small publishers and even some authors can't  
> break through the logjam that is Washington. As a result, nothing gets  
> done. And it's left to private entities with dubious ability to even  
> negotiate something of this scale (who says that Author's farking  
> Guild represents me or my future copyright holders!) to do SOMETHING  
> about the growing problem for which there is consensus but no data.
> 
> dej

dej,

I thought I had made it clear that I accepted there is a problem - or a set of problems - and especially following Erica's work on me ;-), that it is far larger than I had previously accepted. Part of this by the way is because of substantially different approaches to the practical here and in the US; differences too in the litigious tendencies.

Rather than deflecting from the problems, I was teasing out which things were not the orphan problem, and to what extent it is a single problem; or whether there are a series of problems. I conclude there is a series, and the case that is serious has to be presented with that degree of detail and clarity. I don't disagree with your views about legislatures, but they are generalists. Whether they are corrupted or not, they need cases put clearly both as to what the problem is and what solutions are available - and that often within severe restrictions on how they are able to act.

Like it or not, your best answer is going to lie with a function of government determining what needs to be regarded as orphaned, and what cannot be.

But I have clearly not got across why I am so concerned about the nature of the campaign for access to orphan works. There are probably two basic issues. The first is that if the process of determining is not absolutely transparent there is a severe risk of stealing; you view corporations in a way similar to me. And yet there underlies your comments support for Google, perhaps one of he quickest learners in how to distort for profit.

The second is far more serious, though connected to the first. How do you frame a law to release wanted true orphans from other material, other works, that may lie dormant for reasons peculiar to the rights owner? As part of that, how do you frame a search requirement that 'leaves no stone unturned' without making it so prohibitively expensive as to prevent the new law having effect?

If you do not require thorough checking, how do you prevent inadvertently spoiling an owner's campaign or life or business, by revealing something that would give problems? How do you ensure that, particulalry with  the failure of so many Americans to look up to see the world around them, that a search is limited to places where ownership cannot be?

There was a vast genuflection to Google over its settlement when announced a year ago. People like me who pointed out how bad it was for rights owners were howled down, on the basis that there was so much good in it, like the treament of orphans. You have, I am sure, now noted how much opposition there is to the deal from within the US and from abroad, including major governments. And I trust, most of all, that you have noted how your own DoJ has echoed exactly the things I and others were saying within days of the announcement last October.

So while, and I acknowledge it, you certainly have a strong case - or cases - please recognise that I don't want to be flung from the copyright frying pan into the copyright fire to solve a problem which is really not an issue of copyright, but of want. I am not against finding a way to meet that want, but it is not so important that it should be allowed to be the thing to destroy the publishing world; in the hands of Google that is what it will be.

Joseph

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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