27 January 2005

Little Orphans and Larry

(Hey, no insult intended, Professor.) The Copyright Office is finally starting to get off its behind and realize that its regulatory authority—indeed, duty—extends beyond allocating royalties for broadcasts of music. In a years-overdue announcement in the Federal Register, it has called for comments on so-called "orphan" works. You can bet I'll be commenting formally; you can also bet that Kahle et al. will be commenting formally.

The Copyright Office seeks to examine the issues raised by "orphan works," i.e., copyrighted works whose owners are difficult or even impossible to locate. Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. This notice requests written comments from all interested parties. Specifically, the Office is seeking comments on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.

I'll certainly be discussing this matter in the blawg, but I think I'm sort of obligated to work through fan fiction first. I do have a couple of initial thoughts, though, that I think should be considered by commenters.

  • I find it both curious and revealing that virtually every instance cited in the Register concerns nontextual materials. This may well be a simple practicality issue: It's far easier to search for textual material using databases and the Internet, which both deters abuse and makes it a lot easier to track down potential owners. I suspect, however, that this is mostly due to the differing natures of "average ownership". A far higher proportion of registered nontextual works is WFH than is true for text. In turn, this implicates business dissolution practices as much as anything else. The key question is this: What happens to ownership of the copyright upon the "death" of the business-entity patron? The answer is not as clear as one might expect. Business sometimes just quietly collapse with a whimper; sometimes they get sloppily absorbed by another business; sometimes absorbtion is neater; and sometimes the Bankruptcy Code comes into play. Even in that last instance, though, very few trustees (or, for that matter, debtors, since the trustee largely relies upon the debtor for information) understand enough to even ensure that the materials are mentioned.

    For discussion's sake, I propose that the Register of Copyright issue an interpretive regulation regarding the ownership of WFH. If a business entity owning WFH copyright fails to take explicit steps to clarify the ownership, a successor in interest has two copyright years to take those same steps (all copyright issues are measured to midnight on 31 December). After that period, ownership reverts to the person(s) who would have been the "authors" but for the WFH doctrine, and such reversion is irrevocable. If that cannot be unambiguously determined, then—and only then—is the work an "orphan" subject to whatever provisions are finally adopted.

  • No matter what happens, I strongly oppose any kind of mandatory renewal of copyright, however that may be termed. The arguments that have been put forth in favor of this are specious at best, and self-serving at worst. More on this another time.
  • The Canadian approach has a great deal to recommend it, although it definitely needs more thought to be adapted to US practices. Under Canadian law, if one cannot locate the holder of a work after reasonable effort, one can apply to the Canadian government for a license to use. The government then sets a fee, and the fee is held in trust for any later-discovered holder of the rights. The obvious hole is what happens when the second user incorrectly decides that his/her use is "fair" and does not apply for the license; but that is far too complex an issue for here and now!
  • No matter what procedure is adopted, at minimum it should include a searchable public list of requests/attempts to treat works as orphans, with copies of applications to be specifically provided to the major organizations that represent actual creators. The Copyright Office needs to ensure that no fee is charged for access to these materials; if access is fee-based, all this will do is create another opportunity for fraud and holding rights hostage. Like the publishing, film, TV, and music industries need another excuse for that!