Orphan Works: The Views of an Ignoramus

.

As many of us know, a lot of the art and literature that has been created in the past, and a lot of the scholarship that is being done at present, is being digitized, that is, scanned or 'ripped' into computers, and often put on the Internet.

It so happens that libraries and museums are interested in exhibiting works whose authors or copyright owners are not known, or cannot be reached.  Why are they interested in these works?  And why can't these people be found?

Institutions like museums are often eager to exhibit rare or particularly interesting works; authors are eager to reference rare works; libraries are often eager to showcase rare originals, or copies of rare originals.  Private individuals are interested in access to works where the copyright owner is unknown or unreachable, simply because the work can be exploited without interference from the copyright owner.

Why are there so many works whose copyright owners cannot be contacted?  It used to be the case that a creator of a work had to take aggressive steps to copyright the work, and in the process provide a means of being contacted, so that if someone wanted to duplicate it or exploit it (market something that flows from the work in question) they have a way of negotiating the use of the work with the owner.  Since a few years ago (2005?) the law has changed so that (*) works do not need to display a copyright notice, (*) it is not necessary to register a work in order for copyright to belong to the creator of the work.  As a result, a large number of works that would have been deemed to be in the public domain are suddenly under copyright, while the owners cannot be found (easily).

New legislation is being proposed to enable libraries, museums and other parties to make use of an "orphan work", that is a work whose copyright owner cannot be found.

I tried reading the proposed legislation, and it has been couched in opaque and technical language that I do not care to wade through, with numerous references to opinions by third parties and law and treaties in and with other countries (notably the Berne Convention), with which the USA was forced to comply in order for various privileges not be withheld from Americans.  Here is a summary of the situation presented by a spokesperson for the copyright office.  Here is a hostile assessment of the proposed legislation by a copyright lawyer.  Here is the position of the Association of Research Libraries.

Owners and Copyright Owners should not be forced to identify themselves.  If someone were to write a piece of literature and publish it anonymously, for instance, he or she should be allowed to continue unidentified, despite the frustration of other citizens and entities who desperately desire to exploit the work, or even exhibit it.

Do we need to keep a "hands off" policy on the material forever?  Not necessarily, but if the matter cannot be resolved, I suppose a hands off policy must remain, at least for a time.  Presently it is "creator's lifetime + 70 years", which is a ridiculously long span of time, lobbied for by representatives for movie companies and creative artists' unions.  The earlier "lifetime + 25 years" is far, far more reasonable.  Ok, so your kids can only scrounge off the profits for 25 years.  But this, in my view, is plenty.  In the case of works deemed to be "orphan works", we could simply cut it down to 25 years from the first known instance of anyone seeing the work (and where the date of this first sighting is documentable).

What about fair use?  Fair Use is a phrase that describes limited use of copyright material without payment of a fee.  This is how in colleges and universities, instructors can share a couple of sentences or a paragraph with students without being sent to jail for copyright violation.  The main idea is that no profit is gained from use of the material.  So there is no way to commercially exploit a work and call it fair use.  This must continue to be the case, even if the copyright owner is hidden.  We simply cannot have copyright law trumping privacy considerations.

To summarize, I think everyone must agree that just because the copyright owner of a much desired work cannot be located, there is no excuse for permitting a means for exploiting the work.  But, to reduce the waiting time for commercial use of a product, it could be reduced to just 25 years from first sighting.

Here's an alternative that I just thought up.  A certain percentage of the net profits from any commercial exploitation of an orphan work could be put in a fund, and maintained on behalf of the missing owner for a period of 25 years.  (The growth of the fund would be an incentive for the owner to come forward, but its protected nature might encourage the owner to be complacent about its safety and remain hidden or anonymous.)  We could say that half the fund defaults to the US Government after 20 years, the rest after 5 more years, after which the work goes into the public domain.  (There is already law that applies to authors who emerge after a work has been exploited for a time; the author simply gets the net profits from the exploiter.)

At any rate, I think even at the cost of keeping prospective exploiters waiting, I don't think it is fair to force authors or copyright holders to come forward or risk losing the rights to their creations.  But fair use should be allowed, where fair use should not permit commercial exploitation.  Finally, in my view, the term of copyright should not extend to lifetime+70 years in any case.  Lifetime seems fair enough (assuming that the potential for exploitation of a work is not so great as to encourage murder), and lifetime+25 years seems ample, to accommodate do-nothing children of aged creators.

Arch