April 19th, 2008

Dylan Feng Shui

Copyright Issues: More on Orphan Works

As a follow-up to my previous post:

Since I know it can be tough to slog through 40-something pages of analysis, and I notice that the whole "mandated registries" notion is what is getting the most attention right now, I'm going to do a little cut-and-paste here. Below (from my paper) are relevant paragraphs dealing with the Copyright Office's proposed solutions to the orphan works problem, as they stood in 2006 (as noted, that is the last time legislation was proposed).

But first, a small cut-and-paste from the 2006 copyright report itself (pp. 60-61):


"However, in 1988, the United States acceded to Berne and passed the Berne Convention Implementation Act (“BCIA”).156 Under the BCIA (and under current law), neither registration nor publication with notice is required for copyright to subsist in a work.

Any legislative solution to the orphan works problem, therefore, must not require an author to comply with formalities if failure to comply with those formalities would result in the author becoming unable to enjoy or exercise the copyright in the work. A prohibited formality could prevent the formation of rights, or divest existing rights later in the life of the copyright. For example, if an orphan works statute required that, promptly after creation or publication, all works be registered with the Copyright Office and that all unregistered works be deemed orphan works, which automatically and permanently fall into the public domain (resulting in a complete loss of rights for the author), Berne’s rule against formalities would be implicated, and violated."

(emphasis added)

Please notice that the Copyright Office's statement from 2006, when they did their report and proposed solutions, makes the likelihood of a proposed bill requiring registries extremely unlikely. As in, we'd have to withdraw from Berne, TRIPS, and other international agreements before passing something like that, and I juuuust don't see that happening.


Exerpt from my 2006 analysis:
(ETA: Alright, I'm also going to go through and bold some stuff and add notes for more ease of reading. :)

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ETA: One of the only informed and reasoned blog discussions on orphan works that I've seen so far, other than the few folks cited in my previous post. I'm not saying I agree with every single point, but he knows what he's talking about and raises important issues. He also alerted me to the page that shows the hearing that resulted in the March 13 statement I linked in my previous post. You can see several other statements by clicking on the witness names.

ETA Deux: I've done one more post on the orphan works issue, focusing on a "reasonable search," particularly for visual arts.

...

In something completely unrelated, I want Neil Gaiman's couch. ZOMG. Neil himself is cool and all, but the couch! The COUCH!

LOOK AT IT:



It's gigantic! It makes Wonderful Neil look like a wee sprite! It's like some kind of modernistic pastel-loving giant's lounge furniture, and I covet it mightily. Particularly if I could also have all of the weird pillows, poufs, and blankets that nest there (seriously, what is that thing on the right? A fish-pillow tied to a regular pillow? Whatever it is, it is bizarrely awesome).