06 August 2005

Making Orphans (1)

A large part of the noise concerning the so-called "orphan copyright" problem comes from parties whose grasp of logic seems somewhat lacking. Two main fallacies have dominated this debate in front of the Copyright Office since January; one additional fallacy needs to be made clearer.

The first fallacy, and most obvious (at least to me), is the failure on the part of many "scholars" (the quotation marks are there for a reason) to distinguish between preservation and exploitation. One of the most common excuses offered for the "need" to allow unlimited republication of orphans is to avoid losing material from the public record. There's a word for institutions that do this kind of thing routinely: Library (or, I suppose, Museum). Preservation is not linked to redistribution. The material will not be "lost" from the public record if it is not redistributed, so long as it is preserved. Admittedly, some kinds of media are subject to loss if not preserved; film, in particular, is proving far less robust than paper. Fortunately, this was not a huge part of the debate at hearing on Tuesday; it was, however, a huge part of the written submissions in March (and again a couple of months later).

The second fallacy demonstrates why lawyers shouldn't be allowed to do economic analysis without a trained economist editing their work. One lawyer repeated put forth the following economic nonsense:

  • A substantial proportion—the figure 92% was quoted, although that's a deceptive overgeneralization that fails to account for differing classes of ownership and material—of works were not renewed when required during the time that renewal was mandatory.
  • Therefore, those works had no economic value to the copyright holders.
  • Therefore, free reuse of those works should be allowed now, since they have no economic value to the copyright holders.1

There are just a few logic problems here. The most obvious—and, by itself, fatal to the entire argument—is in the third step. This step can be true if, and only if, economic value at trenewal is necessarily identical in value at tnow. This is a fatal logical flaw, without even considering the factual flaws (for example, for print materials, what was not viable in 1968 due to printing costs may well be perfectly viable via POD or electronic publication). That, however, is only the beginning; the second point is also fatally flawed. There were many more reasons than mere economic valuation that went into renewal decisions—presuming that there even was a renewal decision made (consider, for example, the film company that had gone out of business, and therefore could not renew even if it had desired to do so). It is no criticism of the current Register of Copyright, or of her staff, to admit that the renewal system was arcane in concept and in administration. Those who claim that renewal was easy have never tried to struggle with the forms and directions—and most especially have not done so after a change in control put a different party in the decisionmaker's chair. The first point is equally suspect. As noted above, it (wrongly) equates all natures of materials and owners in one large, statistically noncontiguous population, and attempts to draw conclusions valid as to each subpopulation from questionable data concerning the population as a whole. This is akin to claiming that professional basketball players average 1.73 meters in height, since the entire American adult population averages 1.73 meters in height.2

The third fallacy is the assumption that the Copyright Act is responsible for the orphans in the first place. That exposition, however, must await another time. As foreshadowing, consider what happens when an author dies intestate.

  1. No, that's not an exaggeration, as you'll see when the transcripts become available; neither is it an unfair oversimplification of the argument offered, as it was offered repeatedly and I think I got it pretty much verbatim in my notes by the end of the day.
  2. Then, too, this ignores the many other causes of nonrenewal under the 1909 Act, and indeed under the 1976 Act. The most insidious among these were the manufacturing requirement and the marking requirement. After all, if a copyright has been lost for one of these reasons during the first term—and that was far more common than one might suspect, reaching around 15% of all short fiction in a random sample of 1,700 pieces originally published in popular magazines between 1938 and 1957—"failure to renew" is mere sophistry. In fact, it would have been a perfectly rational decision to not take the effort to "renew" a nonexistent copyright.