A little Parable on Orphan Works Reform

As Congress winds down, it faces the usual barrage of last minute bills — including requests from the usual suspects in the IP Mafia to expand yet again the value of their copyright holdings (you can read bout the latest push in the lame duck session at Public Knowledge or the new public interest/industry coalition website Digital Freedom). But one piece of legislation deserves to pass, the Orphan Works Act of 2006. This legislation seeks to address the problem of works where one cannot determine who holds the rights.

How does this happen? In 1976, we moved from a regime where we required someone to register a work with the Copyright Office to get protection to one where where everything rendered in fixed form is protected. So if you fnd a work, you must assume it is still under copyright. Even if you can find a record of the rights holder at the copyright office or elsewhere, you may no longer be able to find the current holder of the right because that person has died or moved on without a forwarding address. And since copyright has been continuously extended, the work remains protected and therefore unusable.

So after much prodding, the Copyright Office recomended to Congress to pass a bill that allows someone to do a due dilligence search for the rights holder and set up an escrow account to put some of the profits from republishing the work if the rights holder shows up. This bill is resisted by some trade groups. You can read a good statement about the bill by Public Knowledge’s Gigi Sohn here.

In any event, the subject came up on a local science fiction list I’m on. A fellow by the name of Keith Lynch wrote an excellent little piece illustrating the value of the Orphan Works Act, which I reprint below with permission.

Stay tuned . . .

From Keith Lynch. Reposted with permission. Copyright 2006.
(Lee Gilliland is wife of science fiction author Alexis Gilliland)
Lee Gilliland forwarded a message opposing a bill that would allow
reprinting copyrighted works after a thorough good faith attempt to
locate the copyright holder failed.

A short story:

In 2106, a publisher happens upon the last surviving copy of Alexis
Gilliland’s _Wizenbeak_. He wishes to reprint it. It’s still
under copyright, since the author lived to a ripe old age, and since
Congress extended copyright several times during the 21st century.
The publisher spends a month’s savings doing an extremely thorough
search for the copyright holder. He discovers the following:

When Alexis’s great-granddaughter started work at a think tank in
2041, she signed a contract with them assigning to them any and all
patents and copyrights of hers. It’s not clear whether the contract
only applied to patents and copyrights she originated after signing
the contract; it was never litigated. So it’s not clear whether she
or the think tank kept the copyright.

Her grandson divorced in 2092. The divorce papers said which spouse
each piece of property went to, but never mentioned _Wizenbeak_, so
it’s not clear which party, if either, got it. The ex-wife then moved
to Mars and changed her name, and cannot now be located or even
confirmed to still be living.

The think tank went bankrupt in 2059. Its assets were parceled out
among 26 different creditors. The copyright to _Wizenbeak_ was not
mentioned, so it’s not clear which of the 26, if any, got it.

The publisher is willing to put a reasonable amount of money into
escrow to be paid to the copyright holder, if one ever shows up.
But the law doesn’t allow that as an option.

So he gives up in despair. Sure enough, as he feared, by the time the
copyright expired, that last surviving copy has long since been lost
or destroyed.

Readers in 2106 can enjoy 19th century novels, as they’re all out of
copyright status. They can also enjoy 21st century novels, as their
copyright owner is usually obvious. But the 20th century is a gaping
void, an era about which little is known. A handful of wealthy people
own what original 20th century novels happened to have printed on
acid-proof paper and escaped fire, flood, “de-cluttering,” and other
vicissitudes of time. But the only 20th century SF novels available
to the masses are those that never went out of print: Those by
L. Ron Hubbard or John Norman. Understandably, the 20th century
is not well regarded.

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