Wherefore Thou Art #24
MORE ORPHAN THAN NOT

The federal Copyright Office is looking at ways to clear up uncertainties that arise from the re-use of materials for which the copyright ownership is unknown-the so-called "orphan works" question. And it's about time.

In the mid-70's the copyright laws were amended to allow for automatic copyright ownership upon a work's creation and for that ownership to last for the creator's lifetime plus fifty (now seventy) years. And the ownership durations of works that already existed in the mid-70's were extended as well.

Prior to the change, a work had no federal protection if it wasn't published, and once it was published the term ran for 28 years, plus another 28 years if the owner renewed his or her copyright registration with the Copyright Office.

Studies have shown that under the prior law, less than 20% of the copyright registrations were renewed. Even allowing for the inevitable forgetfulness of the owners (I mean, my to-do list doesn't extend out for 28 years), clearly the vast majority of copyrighted works were abandoned by their owners, and passed into the public domain, where the works could be used for any purpose by anybody for free.

The tension between "who-owns-what" and "I-wanna-use-this" becomes profoundly frustrating for everybody, and especially for artists, historians, archivists and librarians. I've given lectures to groups of these folks and it ain't pretty. What can we do with this book from the 1940's, with a publisher that doesn't exist anymore? What about this box of undated photographs somebody found in their attic? I explain that most re-uses that don't qualify for the "fair use exception" (educational uses, criticism, research, etc.) could very well be an infringement of the original creators' rights. I suggest that a reasonable search be made for the original creator, and if none is found, then a decision has to be made whether to re-use the work or not. It's a calculated risk-if there is someone out there with an interest in the original work, if that person would even find out about the new re-use, and if that person would care enough to do anything about it. I typically suggest that new users err on the side of re-use-because it strikes me as tragic that a creative work cannot be re-published or re-used in situations where a hypothetical owner is probably non-existent.

However, artists, historians, archivists, and especially librarians generally don't want to know from calculated risk. Many work for not-for-profit institutions, and the word "risk" is just not in their vocabularies. Rather than re-introduce, re-publish and re-use these wonderful, forgotten, and neglected works, the decision is too often made to simply not do anything, and allow the works to languish in obscurity.

The Copyright Office is looking at ways to allow these works to be used without risk. In the coming months, proposed legislation for the treatment of "orphaned works" will be drafted and sent to Congress. You can read the collected public comments and suggestions for how do this at www.copyright.gov/orphan/index.html.

This is what the new law is likely to look like: Anyone wishing to use a work will be required to make "reasonable efforts" to locate the work's owner, and "reasonable efforts" will probably be loosely defined. Figure a Google search, a search of the Copyright Office's database, and maybe a little inexpensive digging elsewhere, and you've made a reasonable effort. Maybe there will be an elective procedure where this "reasonable effort" can be recorded with the Copyright Office. The work can then be used, and if an owner of the original work magically appears out of nowhere screaming "that's my work!" and can prove it, the owner's damages will be severely limited. One proposal I've seen limits the owner's damages to $200.

With stuff like this, the devil is always in the details, and that's what the Copyright Office and Congress will be looking at during the next few months. The solution won't be perfect, but then, nothing in the sublimely wacky world of copyright law is ever perfect.

But it will be a whole lot better than the unproductive mess we've got right now.

© 2005 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.