24 May 2005

Evasive Action

A new bill on the "orphan problem" raises some interesting issues.

  • The Copyright Office has engaged in two rounds of comment collection on the so-called "orphan problem" in copyright.
  • Frankly, the general tone of the comments, not to mention their substance, did not favor the IWTBF (information-wants-to-be-free) viewpoint. In particular, a fair number of comments demonstrated that the parade of horribles from the IWTBF community represent outliers—and outliers are inevitable in any legal regime.
  • So, a week after the last of the reply comments came in, Zoë Lofgren (D-CA) (who represents the Silicon Valley) introduced H.R. 2048, which would radically rewrite the Copyright Act to accord with IWTBF proposals. The bill as introduced would:
    • "[A]llow abandoned copyrighted works to enter the public domain after 50 years" (purpose of bill).
    • Asserts that

      [T]he existing copyright system functions contrary to the intent of the Framers of the Constitution in adopting the copyright clause and the intent of Congress in enacting the Copyright Act. Neither is intended to deprive the public of works when there is no commercial or copyright purpose behind their continued protection. It is, therefore, necessary to establish a mechanism by which abandoned American copyrights can enter the public domain. (§2(5))

    • Proposes a new § 306 imposing a "maintenance fee" for copyrights, taken almost word-for-word from the publicly made proposals of Certain Interested IWTBF Groups.

      The Register of Copyrights shall charge a fee of $1 for maintaining in force the copyright in any published United States work. The fee shall be due 50 years after the date of first publication or on December 31, 2006, whichever occurs later, and every 10 years thereafter until the end of the copyright term. Unless payment of the applicable maintenance fee is received in the Copyright Office on or before the date the fee is due or within a grace period of 6 months thereafter, the copyright shall expire as of the end of that grace period. (proposed § 306(a))

    • Add a few wrinkles to the base scheme, including a requirement that the records produced under new § 306 must be "easily accessible to the public" (§ 4(2)).

I find the timing rather suspicious. My gut instinct is that this bill is not intended to pass. Leaving aside for the moment the problems it creates for the Register of Copyright—a $1 fee can't nearly cover the cost of collecting and organizing the data, and that's just for starters—it violates about five treaty obligations and ignores the Constitutional scope of the Court's opinion in Nation Enterprises. Instead, I think it's intended as a platform for Congressional hearings, at which the IWTBF folks think they'll get a more-whatever result than they will through the Copyright Office's proceedings.

What the IWTBF community appears to really want is a way to roll back participation in the Berne Convention, which both sets the baseline copyright term at greater than fifty years and prohibits imposition of "formalities" for maintenance of copyright. Then, too, there's the question of whether commercial viability is the only appropriate test for control over intellectual property, which rather inverts the IP clause. The IP clause establishes an end of encouraging "progress" in art and science—let's call that "innovation," as a relatively value-free term—using the means of an economic incentive. The IWTBF proposals, however, tend to treat the economic incentive as if it is a systemic goal, and attack it from that perspective. The logic of doing so escapes me… at least from an instance-neutral point of view. Only once one narrows the focus from the general case to specific instances can this view make sense, because for some actors the economic incentive is the end.

Common courtesy requires that we allow the Copyright Office to complete its work before moving this issue to Congress. In fact, I'm not sure that this meets the real problem at all. The bill, in its findings of fact, asserts that:

Current law continues to grant copyright protection to works published as early as 1923. See 17 U.S.C. [§] 304. Yet the vast majority of older works are no longer commercially available. One study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value. Eldred v. Ashcroft, 123 S. Ct. 769, 804 (2003) (Breyer, J., dissenting). Nevertheless, under current law, these abandoned works will not enter the public domain for many years. This prevents commercial and noncommercial entities from building upon, cultivating, and preserving abandoned works. Indeed, while older works are less likely to retain commercial value, they are more likely to "prove useful to the historian, artist, or teacher." Eldred v. Ashcroft, 123 S. Ct. 769, 805 (2003) (Breyer, J., dissenting).

§2(4). If only two percent of the works "continue to retain commercial value," isn't that by itself an indication that regulatory action should be the first resort, and only if it fails should we amend the basic statute?

One serious oversight is that the identities of the various parties at issue get virtually no consideration.1 In my experience, the vast majority—in excess of 90%—of the purported "orphan" works out there fall into one of two classes:

  1. Works for hire, meaning that (almost always) a business entity owns—or owned—the copyright. Motion pictures, for example, are WFH. So are news-agency-sponsored photographs, many sound recordings, almost all "news" articles and items (as a practical matter, anyway), and—at the core of the proposed findings of fact—most educational materials.
  2. Controlled not by the actual creator of the work, but by his/her heirs through distribution of the "author"'s estate. Consider, for example, the copyright in Gone With the Wind. Margaret Mitchell's heirs, through a trust, are in charge—not Margaret Mitchell herself.

It has also been my experience that, once one can actually track down the "proper owner", the vast majority of the time permission of some kind can and will be granted.

Thus, the real problem is not the Copyright Act per se. It's succession of interests, and more directly tracking the succession of interests. In turn, that means that the problem is with the Bankruptcy Code (which is rather inadequate in its treatment of intellectual property, particularly in unscheduled IP), with state-law business dissolution practices, and with business-entity recordkeeping in class 1;2 and with the authors' estate planning and later administration of their estates on the other, in class 2. Instead, only the works themselves seem to get much consideration. Perhaps, from the perspective of someone who only wants to use a given work, this makes some sense. Perhaps. But from the perspective of someone concerned with the entire system of determining rights in works, it does not.

  1. Consider, for example, that virtually all comments decrying the "problem" of orphans assume that everyone who wants to "reuse" an orphan work is doing so with the purest of motives, and only desires to ensure that works don't cease to exist because the media on which they are stored deteriorates, or perhaps wants to make an "educational" use of this material. Then, on the other hand, virtually all of those same comments assume that the "rightful" copyright holder won't preserve decaying media, or at minimum wouldn't hire a cost-effective service to preserve decaying media.
  2. Class 1 also presents another problem: 11 U.S.C. § 362. It seems to me that the automatic stay would create some interesting issues for a rights-holder that is in the bankruptcy process during the six-month "grace period" afforded by the statute. But then, it's pretty apparent that consideration of the Bankruptcy Code, in particular, and succession of interests in much detail, has been mostly absent from the entire orphan debate. Except, perhaps, if you look at a comment (PDF) I participated in drafting.