Copyright vs Orphaned Works
I am a photographer and occasional writer so I am concerned with copyright. I use various copyrights with different works ranging from ?all rights reserved? to a creative commons license.
Congress is working on orphaned works legislation to make it easier for people to use material still under copyright when the owner cannot be found. This is a good idea but they will get it wrong. Of course, what have they gotten right lately?
I believe in copyright. The constitution allows the government to issue copyrights and patents for a limited amount of time. The time is not specified and has changed over the years. Patent times have been decreasing in some areas while copyrights have increased. Mostly to protect the mouse. Yes, copyrights have increased as Mickey Mouse nears the limit of its copyright. I am not saying that this is a bad thing. Many people feel copyright should last forever and allow descendants to benefit. If property can be handed down from generation to generation, why not copyright.
Now for the problem. To use copyrighted material, you need permission and may need to pay royalties or fees. That’s fair. What if you want to use a work and cannot find the copyright owner? You could use the material and hope for the best but if caught, the penalty can be large.
It is often difficult is not impossible to track down copyright holders. Many have died without leaving anyone to inherit the work. Other times, multiple persons hold the rights. This is especially true with movies. The music and soundtracks may be held by persons other than the studios. Everyone needs to be contacted for permission.
What about written work. In the 1930′s and 40′s there were dime novels and anthologies of short stories. Many of the publishers are no longer in business. Who was the author, the listed author may be Jeff Smith. How many Jeff Smiths are around? What if that was a pseudonym? It could have been a staff writer doing work for hire. I hope you see the problem.
Some will say: What’s the problem, just don’t use the work. Fair enough, but by some accounts that I’ve read, over 50% of movies ever produced do not have a complete copy in existence. Over 90% of silent movies have been lost. Why would a someone try to restore and sell the remaining copies if they could be sued and loose large sums of money? Of course, if there is no incentive to the studios to restore those properties, more will be lost. This illustrates some of the difficulty that we are facing.
The best argument against the orphan works act is it takes the teeth out of copyright. Someone uses a copyrighted work, gets caught and argues that they could not find the copyright holder. How do we judge weather a good faith effort was made to find the owner. My electronic copies of my photos have contact info embedded in the EXIF data. I can bee found. Please someone ask to use my work. I will happily license their use. Of course, someone could change that data and say they got the photos from somewhere else and that is how they found the photos.
For this reason, the orphaned works act should deal with the age of a work. The newer the work, the harder to use the act. Be sure to allow for sufficient damages for violations of the act. With the all of the stock photography sights selling images for very low prices, how do we determine that a Scott Bourne of Steve Simmon photo is work hundreds or thousands of dollars (they are) while mine may only be worth $10. I think mine should be worth more of course.
Being fair with the legislation will be difficult if not impossible. I don’t think that Congress can do it right. I don’t think judges and juries understand the value of some of these works.
I would love to see a solution that would save many of the old movies and out of print stories and books. With electronic publishing and print on demand books, we can open a whole new world of material.