Re: what are orphan works?

On Tue, Sep 29, 2009 at 8:10 AM, joseph harris <[email protected]> wrote:
> 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"

>> 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'?

Because they were published with the shorter copyright lengths, so
obviously, those lengths were sufficient motivation to encourage
publishment. Obviously, authors of books published in 1930 did not
demand Life+70 copyright to convince them it was worth publishing.

> 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?

If the purpose of copyright is an *incentive to publish and
distribute*, why extend it for already-published materials? Those
found whatever incentives existed at the time to be sufficient.

> 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.

OTOH, not requiring registration, especially in the digital era, seems
a recipe for endless lawsuits.
Can I insist that my emails not be copied onto AOL servers, and sue
AOL if they are?

> 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.

I don't think anyone's claiming there's no value in orphan legislation
(and I expect "wide" would be hotly debated and misinterpreted to suit
people's agendas), but the amount of value, and how to go about it,
aren't agreed on.

> 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.

None of the proposed orphan works legislation (as opposed to the GSA
settlement) has brought up the idea of separating different types of
works into different legal categories. (Possibly because nobody wants
the nightmare job of sorting out exactly what those are, and how to
deal with multimedia works.) I grant it seems like a useful idea, if
it were possible to establish different categories of copyright
without and endless quagmire of arguments of what-goes-where.

> 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.

The "technical copies" are usable copies.

>> 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.

Right; sorry about that. Unpublished works are indeed treated
differently. The definition of "published" has gotten a bit strained,
however... it's not clear whether posts to email lists, for example,
are "published." But private diaries and letters are still covered by
privacy laws, and AFAIK the public has no right to those works, even
after copyright would've expired.

-- 
"I follow Eris blindly in all things. That She is the Goddess of Chaos
simplifies this immensely."  -- Christian the Pagan


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