Wednesday, 06/18/2008 - 9:50 am
by Chris Williams
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If you thought shady publishing contracts were a bid deal, TokyoPop doesn’t have anything on the US government. Not that they’ve done much to protect an author’s work, but at least we had the Berne Convention to protect us at a minimum. The great thing about the Berne Convention was that it made copyright an institution of trust. One didn’t need to state the typical “©” disclaimer to legitimize the claim, simply creating something unique was enough to hold copyright. Putting the copyright notice and filing the work with the Library of Congress, however, is always a wise precaution. Now with the Orphan Works Act threatening passage, registering with the LOC may not be enough.
OWA’s original intention is to allow works with lost ownership, be it death, no next of kin, or simply impossible to determine, to be used in cultural institutions for reuse. So an Orphan Work (different from its original copyright work) would be legitimately brought back into society because finding the original owner in order to obtain a license is impossible.
A practical implementation of this would be the digitization of out of print books. Now, who is already offering this service? Would they benefit from having a law passed to protect them from potential copyright violation?
What defines an impossible search? There is no standard for determining a reasonable effort to locate the copyright holder. Such an open-ended statement wouldn’t ever hold up in a lawsuit. If only there was a way to substantiate a “reasonable effort” to determine a copyright. If only we had some sort of massive audiovisual archive to search through!
Google Print and Orphan Works
Orphan works represent an untapped wealth of information that can and should be made accessible to the public. These works include those for which the author or assignee of a work – the work’s “parent” – can no longer be determined, usually because the contact information included on the copyright registration is out of date. They may also include works that have been, for all intents and purposes, “disowned,” either because any potential monetary value of the works has expired or because their authors simply are not interested in enforcing the copyrights on their works.
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The Copyright Office currently maintains a database similar to the one contemplated here. However, its current database covers only those copyrighted works registered after 1978, does not provide contact information for copyright holders, and is not readily queried through automated means. This last problem is particularly difficult for archivists such as Google, as it necessitates a manual review of records to determine the status of a given work. For an archivist of Google’s scale, manually searching hundreds of thousands of records through any means but an automated search is practically impossible. For that reason, we suggest that the database be accessible and searchable by automated means as well as through a web browser or other methods.
A searchable and current database of copyrighted works would serve as a platform upon which to rest any number of legislative or regulatory improvements to the copyright system.
http://www.copyright.gov/orphan/comments/OW0681-Google.pdf
The bottom line is this: creators could find themselves giving compulsory license in the form of the orphan work. Even more concerning is that an orphan work can continue to be used as a derivative work without the original owner’s consent. OWA leaves a back-door wide enough to take away creators rights.
More information can be found here:
Take Action: Don’t Let Congress Orphan Your Work
Oppose the Orphan Works Act of 2008
Latest in orphan works
Creative Commons explores a digital copyright registry system
Webcomics Weekly #38 - Orphan Works Bill
The irony of googling these resources is not lost on me.
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