orphan works ; crazy copyright law ©
What are we thinking? Don’t you think you should own the copyright to your work? This is especially crazy if you are an artist. Imagine being Jackson Pollock or me. We need to bring our laws into a place where we can have fair use.
I want people to see my work, share it, publish it. I just don’t want them to alter it.
This is an op ed by Larry Lessing from the New York Times, you can read the original here:
Little Orphan Artworks
CONGRESS is considering a major reform of copyright law intended to solve the problem of “orphan works” — those works whose owner cannot be found. This “reform” would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.
The problem of orphan works is real. It was caused by a fundamental shift in the architecture of copyright law. Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.
The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately. The Congressional Research Service has estimated that just 2 percent of copyrighted works that are 55 to 75 years old retain any commercial value. Yet the system maintains no registry of copyright owners nor of entities from which permission to use a copyrighted work can be sought. The consequence has been that an extraordinary chunk of culture gets mired in unnecessary copyright regulation.
The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government.
But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.
The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.
The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a “diligent effort” is not going to be cheap. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.
Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.
For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.
This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.
A hired expert shouldn’t be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.
Lawrence Lessig is a law professor at Stanford.
Tags: copyright, law, lawrence lessig, creative commons, editorial