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

[yroJJory]

The "reasonable compensation" argument is simply window dressing. What this bill is really about is making copyright registration mandatory if you want to ever get paid for your works. Currently, all creations are copyright the moment they are completed. Registration is optional, but helps in seeking legal actions against infringers.

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

[STrinity]

The big corporations are still going to have their pack of lawyers constantly on this - they'll still get their $ while the little guy will lose.

That's generally true, but not universally. Look in the cheapie bin at your preferred DVD retailer and you'll find public domain releases of The Lucy Show, Beverly Hillbillies, Andy Griffith, Charade and His Girl Friday -- all films and TV shows that at some point a lawyer forgot to renew the copyright on.

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....

Re:Reasonable Compensation

[cpt kangarooski]

...times 163, presumably all different and most in foreign languages if you want the same copyright protection as today.

Yes, that's right. Copyrights exist to cause authors to create and publish their works so that the public domain can be more enriched than it otherwise might be. However, if an author in country A simply doesn't care about -- i.e. wasn't incentivized by -- a copyright in country B, then why would it make sense for country B to give him the copyright? If it was important to the author, he would pursue it. If it is not important to him, he'll ignore it.

If the author apparently doesn't care, why should I? And since the author seems to have been sufficiently incentivized by something else (possibly country A's copyrights, possibly something else altogether unrelated to copyright), it would be pointless to give him a copyright. It would be liking paying for something that's being given away for free!

I am in the US, and I am really only interested in the US reforming its copyright laws. Since the US is a large market for many works, I have no doubt that very, very many foreign authors will register for copyrights, just as our domestic authors will. And if they're uninterested, then why give them what they are unwilling to get themselves? Maybe it will result in the work being made more popular here than it would be by an author who ignores the US market. That's a plus. And if nothing comes of it, then there's really no harm, and there is still the slight benefit of the work being available if that changes, which is unlikely.

I would like to point out that I'm not playing favorites here; I think that the US should unilaterally offer national treatment. That is, we should permit foreign authors to get copyrights on exactly the same basis as US authors, with completely identical treatment. Further, that we should do so, regardless of how foreign countries behave toward us. After all, the mission of copyright is to spur the creation and publication of works in order to get them, unencumbered, into the hands of the public. The nationality of the author is quite irrelevant. Ditto for the language of the form; let there be Spanish and French and Arabic and Chinese forms as well, with enough translators at the Copyright Office to process them.

I would hope, of course, that other countries would follow our example and also unilaterally grant national treatment to foreign authors. I'm not too worried about it, though. Remember, the US did perfectly well with not being a member of the Berne Convention (which sucks, btw) until 1989. In fact, joining it (and the ramp-up involved) is the source of many of the ills we currently suffer!

Meanwhile, I'd like to point out that, AFAIK (I'm not a patent attorney), there is no reciprocity in the patent system. An inventor has to file for a patent in the US, if he wants rights there, in Japan, if he wants rights there, etc. having to deal with the local rules, which can vary wildly, retaining local experts, etc. A registration formality for copyrights would be a piece of cake, by comparison! I can't imagine the paperwork being difficult (name of author, title of work, etc.), and the various national post offices seem to have international mail under control, so deposit would be no problem. Unlike with patents, authors wouldn't need to hire local lawyers to handle the registration (though I wouldn't mind if they did, being a copyright lawyer myself!), and with the falling US dollar, what is a token fee here is likely even less of a hurdle for many foreigners.

How is this bad? It means that if someone from Pottsylvania writes a book for local consumption, and never bothers to register it with the US, that it is in the American public domain, but does that harm him? No, not really; he was ignoring the US anyway. And if someone else does use the book, say, as the basis for a movie, well then at least something productive happened, instead of the author allowing it to rot on the vine. The author isn't being forced, he isn't bei

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...

[bigskank]

While it may be true that this is pushed by big media, I hardly see how this is failing to accord appropriate protections to so-called "amateur" creators. Amateurs, like anyone else, can fairly easily register any work which they create with the copyright office. Further, you can do something like stick an email address or other contact information on the video/image/webpage/etc... so that there is some way for anyone wanting to use your copyrighted work to contact you (this has the dual function of also identifying that the work has an active "owner" who needs to be contacted). Neither of those approaches is overly burdensome, even for amateurs.

It seems that everyone favors liberalization of copyright laws only if it helps out the "little guy." Copyright needs to be a balance, allowing both large media holders and individual content creators to play fairly under the same set of rules. This bill would help achieve that.

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.

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

[smartaleckkill]

since 'copyleft' depends on copyright for any actual *legal weight* i'd guess there are potentially serious implications for FOSS, pretty much as a whole

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

[ejecta]

Yep, and then it will be a case of;

LAWYER: Well your honour we made a good faith effort to find the copyright holder, but as we couldn't contact the holder we released an exact copy of all their work in a box set for $59.99 as it was no longer covered by copyright.

JUDGE: What efforts did you undertake?

LAWYER: Well, *cough* we looked for the most obscure and most likely to be out of date address and mailed in alleged copyright owner in the plainest and blandest envelope we could possibly find with a covering letter sounding as much like a 419 scam as possible.... and they just didn't get back to us!

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

[dgatwood]

More than that, the penalties should be nonexistent provided that the person making it available does not make a profit doing so. Otherwise, it should be a flat rate statutory amount depending on the nature of the work.

Particularly with music publishers, depending on the publisher, it can be a pain to (legally) perform out-of-print works if you don't have enough copies and can't buy more. I think that I should automatically have the right to make as many copies as needed to perform any out-of-print work under the condition that I agree to destroy the additional copies and purchase real copies if/when I find out that the work is in print again. It shouldn't be the end user's problem that the company is too lazy to do print-on-demand.... :-)

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:The flaw is internet anonymization.

[Anonymous Coward]

Think about it. This will effectively eliminate copyright on the internet, at least for anything that can't be automatically identified with 100% accuracy.

If this becomes law, Napster will reappear. Every time someone offers a song, the new napster will not know who owns the copyright. So they will send it off to the copyright office to be identified. After the first few billion, the copyright office will be so far behind that effectively nothing will ever get processed and now all the record companies will get will be a small percentage of whatever the new napster gets.

Re:The flaw is internet anonymization.

[Hatta]

Want to ruin some bureaucrat's day? Let's find out if goatse is copyrighted.

Re:The flaw is internet anonymization.

[innocent_white_lamb]

So they will send it off to the copyright office to be identified.
 
Nice thought, but that's not how it will work.
 
TFA says that private outfits of some kind will have certified databases to identify works, and you send your stuff to them for identification along with an as-yet unspecified fee. So the New Napster would require tens of billions of dollars to send out for identification fees for those billions of songs....

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.

Day Late & a Dollar Short

[Alan R Light]

This reform should have been done years ago, but this still doesn't go far enough.

I suppose it's meaningful that some folks in Congress are just now beginning to see that copyright is a very important issue in the information age.

Now, if they would just undo the copyright laws they've passed since 1995, that would be a good start. And then they can undo some more, until the copyright period is reasonable - somewhere between 10 and 30 years. Once they get THAT done, THEN they can address trickier issues like accidental infringement.

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.