Tales of the Sausage Factory: Rescue Orphan Works!

The Copyright Office has begun an important proceeding on ways to allow works where copyright status cannot be determined (called “orphan works”) to become accessible to the public. The good folks at Public Knowledge have this useful blurb and links. For my take, see below . . .

As the copyright office recognizes in the notice, Congress has made a fine mess of things (well, they suck up more, but you get the idea). In 1976, Congress changed the law to make everything copyrighted. Prior to that, you needed to register with the Copyright Office. If you found a work that had no copyright symbol and no registration prior to 1976, it was public domain and you could use it.

So now you can find something you want to publish or make use of as a derivitive work and you have no idea who has the copyright. Even where people have registered, they die or move or whatever and fail to update their records. for exaple, I have a friend who runs a newsletter with as significant readership who had permission from someone to publish an article many years ago. Since that time, the author of the article has died and she has no idea who his heirs are or how to track them down. she believes the author would have wanted the article reprinted, but she cannot do so legally because she doesn’t have the necessary permission.

This case is not unique. There’s tons of stuff that people would be interested in republishing, or creating derivative works from, or whatever, but they don’t dare, because they don’t know how to get the copyright clearances. This does more than suck on a personal or even societal level. It is exactly the opposite of what the Copyright Clause of the Constitution is supposed to be about. Instead of “promoting the sciences and the useful arts,” the copyright becomes a barrier to further dissemination of knowledge and creative works.

So the Copyright Office, having heard lots of complaining about this, has opened a proceedinging to see what, if anything, should be done about this problem of Orphan works. Please note that the CO has not proposed any actual scheme, although the notice does describe Canada’s approach to the problem.

I urge anyone who cares about these issues to file comments with the Copyright Office. You can do this electronically, by mailing comments to orphanworks@loc.gov (other relevant information is available by reading the notice.

This is one of those cases where shear number of comments makes a *huge* difference. If the Librarian of Congress (the head of the Copyright Ofice) and members of Congress see a huge turn out, then they will take action. If no one shows up to the party, then they will conclude it is not worth the aggravation of changing the rules.

For those interested, some of my usual helpful tips:

1) Anyone can file comments, including non-U.S. citizens and non-U.S. residents. So do it.

2)While the number of comments matters a great deal, administrative agencies do not determine matters just by counting noses. The more relevant detail you can put into a filing, the better. This is important to persuade law makers, to help them develop policies that are useful, and to provide a sufficient administrative record to support a decision on appeal.

4) Feld’s Rule of Public Policy #2- Policy is made by human beings. Your comments will be much more effective if they are polite and clearly written rather than if they begin with “Dear corrupt scumbag. Stop schilling for the RIAA and do something decent with your life for a change.”

5)The best comments will explain how a change in rules will make a difference in reality.

Example comment:

“I am an amature musician who writes songs and performs them publically for friends. I occassionaly self-publish these on my website [URL] or on CDs. Many of the works of mine and my friends are deriviative of other works.

Before publishing any work that is deriviative, I look to clear any rights issues. This is impossible if a work is still under copyright but there is no way to find the copyright holder. As a consequence, I and my friends cannot engage in our creative efforts. We cannot distribute them to our friends and to others who may happen to find our works. Yet it is exactly this sort of creative work that the copyright laws are designed to encourage.

The proposal for a means of clearing orphan works would have great value to me. It would enable me to create and distribute new and original works, as the Copyright Clause intended.

Respectfully submitted,


Stay tuned . . . .

One Comment

  1. When I first saw this I thought, “Who is Rescue Orphan, and why is Harold so excited that he works?”

    I’ve been meaing to writer a little story here about “garden path” mis-parsing of sentences. . .

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