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

[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

[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...

[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...

[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?

[Reality Master 201]

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

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.