Congress Considers Reform On Orphaned Works

I Don't Believe in Imaginary Property writes "Bills have been introduced in both the House and the Senate to liberalize copyright law in the case of orphaned works. The almost-identical bills would limit the penalties for infringement in cases where the copyright holder could no longer be identified. The idea is that one could declare their intent to use the work with the Copyright Office and if the copyright holder didn't care to respond, they would only be able to get 'reasonable compensation' instead of excessive statutory penalties. Public Knowledge has more details on the bills."

Comments

Reasonable Compensation

[dreamchaser]

I did RTFA but I haven't yet read the text of the two bills (I'll get to it, I read a lot of bills...yeah I know, get a life). I would love to know what 'reasonable compensation' is. If the copyright holder cannot be found or doesn't exist, there should be no compensation if suddenly 10 years later someone who was once a member of the company that once held the copyright shows up and says give me money.

Re:Reasonable Compensation

[cpt kangarooski]

That's basically right, and it's a good thing. Registration is traditional in the American copyright system, and we have not been without it for very long; just long enough to see how awful automatic copyright grants are. So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee), it will serve to make the copyright system available to help those who want it, while letting the public benefit from the works of authors who don't care about copyrights in the first place. There's no down side.

That having been said, I'm not a fan of this particular bill. Shorter terms, non-automatic renewals, and timely registration as a prerequisite for copyright are much better, even though they'll take more work to achieve. I'd rather pursue that directly, rather than waste time on these mediocre reforms.

Re:Reasonable Compensation

[shmlco]

Putting on my tinfoil hat, why do I suspect that the big media companies have more to gain from this than anyone else? "Well, your Honor, we made a reasonable effort to find the author, couldn't do so... and then we made the movie."

Re:Reasonable Compensation

[dgatwood]

I would agree with such a seven year scheme, with one minor condition: the initial seven year copyright period should begin on the date of first authorized publication in a fixed form. Until published with the authorization of the creator, any material should be the property of the creator, period, with no right of anyone to publish it during the life of the creator. This protects against a certain class of abuses of works that otherwise would not be protected at all for lack of registration (someone publishing an unfinished manuscript that the author loaned them to proofread 7 years earlier, unauthorized publication of personal letters, etc.). For non-corporate creations, it is not at all uncommon for a creation to take much more than 7 years to complete.

BTW, intellectual property is already taxed based on the income from that property. Outside of that income, copyrights have no inherent value, so I can't see how taxing them would make sense. That could also put an unfortunate burden on individuals who actually own the copyrights for their own creations, depending on how the value is calculated, thus forcing the licensing of copyright to works that the author may not yet be ready to license. Thus, IMHO taxing copyrights is probably not a good idea.

Patents, however, do have some value in the form of binding your competitors' hands. I'm not sure how measurable that is, though, so assessing its value for taxation purposes could be difficult....

Just making it easier for big corps...

[yroJJory]

This one's been lurking through congress lately. Basically, it's so big media conglomerates can use things they find on the web and places like YouTube without having to pay for them. It's all about protections for them and none for artists and creators.

More to read here.

Re:Just making it easier for big corps...

[thezig2]

I agree. Instead of having lighter penalties when the copyright holder can't be identified, make it based on the availability of the work. If the rights holder is making the work available (by putting it in a store, or for free on Youtube, etc.), then anybody else who wants to use the work has to pony up the existing penalties. If the work is no longer available new (like a book out of print), then the penalties should be lighter.

Re:Just making it easier for big corps...

[Adambomb]

I do not understand how anyone can read these details and not see exactly what you're seeing.

To expand on one of the why's for those that may question this, Corporations will have a department or at least a set of dedicated employees who do nothing but verify and respond to contested copyrights that they own. Individuals or small businesses may not be able to afford the manpower needed to manage such overhead. This means that corporations can keep a tight leash on their IP, while making use of material where the creator is identified as "not likely to keep up". Effectively, this increases the base "cost" of maintaining a stable of copyrights so that the riffraff will be right out (5mil$ at the door please).

This is but one of the things such legislation is likely to be used for, and i'm sure others out there can point out more.

Why limit penalties?

[Reality Master 201]

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain?

Re:Why limit penalties?

[hedwards]

Quite so, but it would be nice to have some sort of cost associated, such as the retail price for the work, adjusted for inflation. A limit of $100 or no more than double the original retail price adjusted for inflation, would do wonders even. That's probably a bit on the generous side to the owners of the materials, but it's better than what we have.

The biggest problem with this sort of legislation is that the attorney fees are a part of what makes this kind of suit so expensive for the losing side. If the legislation limits the cost to just an easy to calculate amount without having to involve attorneys it's far more useful. It's not going to help much if a person can't calculate an estimate of the eventual cost without first being sued.

Putting things into the public domain willy nilly like this, isn't necessarily a good solution either. It favors the corporations which can afford to have somebody answering requests. While much of what ends up in the public domain will be from smaller businesses and individuals.

We really don't need additional rewards for producing mass market media, what we need is more rewards for producing the more artistically challenging works. The ones that require real risk and sacrifice to create. The ones which drive the majority of the innovations in the art world. The same largely goes for software as well.

Abandoned really ought to be based more upon availability of the works for purchase than the ability of somebody to answer the phone or an email in a timely fashion.

Re:Why limit penalties?

[TubeSteak]

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain? Maybe the copyright holder died and his/her children don't dig up the copyrighted work or documentation about the work for a decade or two.

The work is still under copyright and the children of the now deceased copyright holder can still make claims on the work.

Making it public domain opens up a whole new can of worms.

Re:Why limit penalties?

[Reality Master 201]

Actually, making it public domain makes sure a whole can of worms doesn't get opened.

Re:Unacceptable

[corsec67]

How about anything goes into the public domain?

A copyright term of infinity+ years isn't "limited".

The flaw is internet anonymization.

[davolfman]

This has been discussed many places and the consensus is that it severely weakens private copyright. With this an artist who shows work low-res online could be anonymized by someone else grabbing the work to post on a forum or the like. This breaks the chain and makes the artist impossible to track. This isn't a problem if you're the RIAA or other MAFIAA as your spy network will catch it for you, but for the little guy, such as ever private artist and photographer out there this is total murder.

When you think about it this has mostly just been produced as a bandaid to allow things like archiving to occur in the absence of a strong public domain and working fair use.

Re:Orphaned work you say ?

[quanticle]

No. This means that when the members of the RIAA/MPAA/BSA want to use someone else's work, they only have to show that they "couldn't identify" the copyright holder, and so can use work while paying only a token penalty. Basically, now a small copyright holder has to undertake the same sort of monitoring as a large record studio. Otherwise they risk having their work appropriated by larger corporation.

The good faith effort

[westlake]

one day, you come across a vintage graphic from the 1960s at a yard sale; it would be perfect for your next video, you know exactly how you want to use it, but it contains no copyright information. New Orphaned Works Act would limit copyright liability

I know that forty years sounds like eternity to the eternally adolescent Geek - but your treasure trove will almost certainly turn out to be an instantly recognizable icon of commercial art and illustration.

The page clipped from Life magazine, the poster that was taped to a dorm room wall.

What looks like a "good faith effort" to you may may look pathetically inadequate and self-serving to a judge. It is altogether too easy not to find what you don't want to find.