Emily (foresthouse) wrote,

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Copyright and Orphan Works: Why the sudden panic?

Via cleolinda's last post (which links to discussions by ursulav, kynn, and maradydd), I've learned that suddenly, out of nowhere, people are getting all het up about the Orphan Works issue. Which is surprising, considering the last big governmental consideration of the issue was in 2006, until you realize that some guy named Mark Simon over at Animation World Magazine (AWM) has posted an inaccurate and alarmist article about the issue. He's gotten almost everything wrong, including the definition of an orphan work. Well done, mister.


Some notes on the AWM article:

- The Copyright Office defines orphan works as "copyrighted works whose owners may be impossible to identify and locate," (Copyright Office 2006 Report on Orphan Works), NOT as "any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time, or by lack of proper registration." (Mark Simon)

- It *is* against international law (the Berne Convention, for one, which the U.S. acceded to in 1988-89) to require formalities such as registration. However, I have seen NO indication anywhere that the U.S. Copyright Office or legislators are proposing to withdraw from the Berne Convention requirements (and other international requirements, such as TRIPS, etc.) and require registration (as Mark Simon insists). As a matter of fact, the Copyright Office, in its massive report on this issue in 2006, specifically noted that it would not (and could not) do this (see, pp. 60-61).

- There is no way in the entire universe that the following will occur:

"Photos on the internet could be orphaned. With tens of millions of photos shared online with services like Flickr, Shutterfly and Snapfish, there is a huge opportunity for unauthorized use of your photos... legally.

You could see photos you take of your family and kids, or of a family vacation, used in a magazine or newspaper without your permission or payment to you." (Mark Simon)

You know why? Because in any case where the author of a work can be identified, the work is NOT orphaned. So, you know, if you have a Flickr account, and someone wants to use a photo of yours that's on Flickr, legally, in order to avoid potential infringement and possible litigation, they have to ask you. And you can say NO! What a novel concept that has been around for many, many years. *rolls eyes at Mark Simon*

I should observe here that, yes, you could see your photos used in an unauthorized manner - but that is the case even today. The remedy is, as always, to negotiate with and/or sue the folks who do it to enforce your rights.

maradydd has a few more good notes on the article.

(Small correction on her examples: actually, you could donate the described old photos to your local library. But whether they could copy them or not would trigger the orphan works issue.)


After perusing this article I made a valiant attempt to find the legislation to which Mr. Mark Simon refers. Sadly, I was unable to locate it. I did, however, find an official statement from The Register of Copyrights (dated March 13, 2008), which explained that the 2006 proposed legislation on Orphan Works is still being considered and discussed. The statement notes several new aspects of the issue that have been raised since 2006, but doesn't say anything like what this guy is screaming about in his article. I have no idea where he got his information from, since he didn't provide a link or anything, and I'm pretty sure "his own head" would actually be the place from whence all of this came. The Illustrator's Partnership, which he links to, references a "new bill" that will be proposed in May, but from the Copyright Office statement, it seems likely that this is the same bill that was proposed in 2006, with perhaps some modifications along the lines of those noted in the statement.

So in other words, to bastardize Terry Pratchett, (who was quoting someone else anyway, I believe), "Here comes the new bill, same as the old bill."


I commented on the article, asking for a link to the supposed "bill."


In a serendipitous occurrence, it just so happens that when I took the Advanced Entertainment Law seminar my third year of law school, my semester project was a paper on none other than orphan works, and the 2006 proposed legislation. So if you are at all interested in an accurate, researched-and-footnoted, largely unbiased (I hope), in-depth examination of the legal issue as it stood in 2006:

Here's my paper

(ETA: I also found my Excel chart on the duration of copyrights for various types of works, in case anyone's interested)

Yes, it's over 40 pages long. It was a semester-long project. But really, if you are actually interested, it's worth reading. Also, my professor was heavily interested in this stuff (and used to work for the Copyright Office), and he gave me an A on this thing. So I'm fairly sure if it was wildly inaccurate or anything, I would have been told.

As far as I know, the only current updates to the proposal would be what was briefly outlined in the recent Copyright Office statement I linked above.


I can do another post clarifying things if anyone has specific questions, but for now, I must run!

ETA: I have posted again, specifically on the details of the Copyright Office's 2006 proposed legislation/solution. Hopefully it will help clarify things, especially the whole issue of potential "mandatory registries."

ETA the Second: And a third post, this one focusing on a "reasonable search," particularly for visual arts.
Tags: copyright, law, law school, the internet iz serius biznes, writing

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