LITTLE ORPHAN ANNOYANCES II

annieBack in October 2012 I posted a link to the Copyright Office’s notice seeking public comment on “the current state of play for orphan works” as part of its continuing review of the subject and “in order to advise Congress as to possible next steps for the United States.”  That notice included a very fair and concise summary of the orphan works problem and I continue to commend it to your attention.  The Copyright Office has now posted nearly 100 comments that it received, and they also make for interesting reading.  Indeed, a perusal of these comments will provide a rather nice overview of the major stakeholders in the copyright wars.  Predictably, the comments range from those (such as the Society of American Archivists’) that consider the orphan work problem a major bottleneck in the free flow of ideas and would impose greater formalities and burdens on copyright owners if they wish to enforce their claims, to those (like the Artists Rights Society’s), which suggest the problem is really quite minimal and that those who wish to use orphaned material should be left to do so at their own peril.

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THE SILENCING OF THE LAMBS

Article I, section 6 of the U.S. Constitution provides that for “any Speech or Debate in either House” of Congress, members “shall not be questioned in any other Place.”  It would be nice to think that, cloaked in this immunity, our Congress could truly be one of the world’s great deliberative bodies, but how often does CSPAN capture even a hint of lucid and original, much less courageous, expression on the floor of either chamber?  Even if the inclination where there, the opportunity is seldom presented.  In the Senate, a determined minority of members can prevent a floor debate on any measure that lacks broad bipartisan support, and in the House the majority leadership will not allow any bill that it does not already have the votes to pass (or on which it simply wishes to stage a sham vote for PR purposes) to reach the floor.

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LITTLE ORPHAN ANNOYANCES

As the author of a work of narrative legal history with a focus on the early part of the 20th Century, the problem of orphan works is near and dear to my heart.  Thanks to the overly generous copyright terms extensions granted by Congress in 1998, my ability to quote some very relevant unpublished manuscripts and to reproduce certain highly evocative visual materials was limited because, while the materials were still theoretically protected by copyright, it was impossible to ascertain what person or entity controled that copyright and was in a position to grant permission in a legally satisfactory form.  By the same token, I have to acknowledge the possibility that my own book may very well be orphaned some day, and permissions that I would gladly give future writers and scholars will go ungranted.  Indeed, I am aware anecdotally of worthy scholarly projects that have been abandoned in their incipiency because of seemingly insurmountable problems of this type.  The worry, of course, is that after a book or article is in print, some distant heir or assign will come out of the woodwork and assert a claim.

I was glad, then, to see that the U.S. Copyright Office, has published in the Federal Register a notice seeking public comment on “the current state of play for orphan works” as part of its continuing review of the subject and “in order to advise Congress as to possible next steps for the United States.”  The notice itself is a concise exposition of the problem, solutions that have been proposed in the past, past legislative efforts, approaches adopted in foreign countries, and the role of orphan works in the Google Library mass digitization litigation which we have been following here, here, and here.   I commend it to your attention.

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