So, I’m suddenly seeing some online paranoia about an Orphan Works Act possibly passing.
Supposedly this would force artists to register each work with a for-profit company in order to copyright it, and allow Google to use any art legally and pretend they thought it was orphaned in good faith, or something.
Apparently there are ONLY! THREE! DAYS! to submit a letter to the US Copyright Office if you want to influence them not to recommend a law selling everyone out to Google, or something.
Um.
Is this some kind of paranoid internet chain mail? What’s going on?
I did some research on orphan works back in grad school about ten years ago, but I’ve kept up since then.
For those who are unfamiliar with the concept of orphaned works, they’re works that should have – and probably do have – copyright protection, but for one reason or another, ownership information is nonexistent (generally true of newer works) or so murky that it may as well be nonexistent (generally true of older works). For example, someone finds a framed photograph in a thrift shop and wants to scan it to use it on his website. It’s more than likely got copyright protection, but there’s no name on it and (currently) no way to find out who took it. There is also the issue of digitization projects such as Google Books that are so large that getting permission from each and every copyright holder is difficult, if not prohibitive. Note that I’m talking about good-faith use, not stealing.
The problem exists in the first place because the Copyright Office stopped requiring creators to register their works with them. It used to be that a creator had to register their work in order to claim protection in the event of infringement. Registration was supposed to prove ownership and, therefore, the right to profit from it. Now, the default is that a work is protected from the moment of creation, with no need to register. This worked well in the days when you had a physical original and any copies were finite, tangible things. However, when you create something in digital form, you’re not just creating a single original. You’re creating an infinite number of originals. A spontaneous photo shared on Facebook can go viral in a few hours, with any credit stripped off.
So everyone in the world has to tell the US government that each thing they produce is theirs, or the US government will consider it fair game?
What happens when Russia implements the same system? Is Mike Masnick going to say it’s your own fault your work is being pirated in Russia because you didn’t register it with the Russian Copyright Office?
You wouldn’t have to register separately with every single country because the Berne Copyright Convention takes care of that for you. As long as your work is copyrighted in one signatory country, it’s recognized as copyrighted in every signatory country. Yes, Russia is a signatory country.
To come extent that’s always been true both ways. IP law is national. The US is a signatory of both the Berne Convention and the Universal Copyright Convention which extend copyright protection between all signatories. Those conventions cover a good chunk of the world. Link for the Copyright Office.
But the Berne Convention also says I don’t need to register to have my copyright protected. In a world where the United States has deliberately chosen to violate the Berne Convention, why should I believe that Russia cannot also deliberately choose to violate a different part of the Berne Convention?
While there may not currently be an orphaned works law before Congress, the concept of orphan works is one that would basically make copyright laws largely unenforceable in any reasonable way. Anyone could claim that they tried and failed to find an owner without doing anything at all, and it would be the person who had their work used without permission who would have to prove the infringer knowingly did not try hard enough in order to prevail in any complaint. This is a ridiculous standard that would allow people to violate copyrights at will, and would benefit huge corporations who have already demonstrated bad faith dealings with copyright most of all.
For example, the DMCA law was set up to presume that publishers were not trying to infringe and gave them the ability to get away with violations as long as they blamed them on a user of a website or consultant or someone else and reacted when the copyright owner let them know. But many of these corporations then used that as an excuse to knowingly let people violate copyrights left and right and do nothing about it unless contacted by the owner for each specific infringement. And then they let users make new accounts and upload the exact same content over and over. The DMCA has become a justification for free infringement, and it is the very business model of many websites, who then use the money they make infringing on other people’s rights to buy lawyers to defend themselves against any lawsuit from people who see past the charade.
The problem with any proposed law is the difference between how it is promoted and how it is actually used. When the orphaned works concept already sounds horrible to anyone who values intellectual property rights, it’ll be even worse than that in practice if it ever passes.
OK, so what I’m hearing is that I should continue to be, as I have been, for a good orphaned-works clause in copyright reform.
Because I’m really no fan of the trendy legal theory of “intellectual property” and its tendency to try to conflate trademark, copyright, patent, and trade secrets (!!!) under one umbrella. And I do consider truly orphaned works to be something not to be lost because of overly strict copyright law.
(Note that I don’t mean, “I didn’t know it was under copyright,” nor, “I didn’t get a call back within a fortnight,” but things like, “author has disintegrated and/or disappeared, and no rights holder can be found after formal investigation.”)
In any case where there are actual significant effects from the infringement, this is trivially easy to prove (e.g. if your works are on sale, it’s easy enough to find them in a web search and introduce the results as evidence that the infringer didn’t bother to take ten seconds to press a few keys).
I just did a Youtube (still owned by Google?) search for “coal black and the sebben dwarfs”, a 1943 cartoon (WB) which has been suppressed since 1968, and WB at least used to make a point of going after anyone who tried to distribute copies.
I had to type ‘coal b’ before the first suggested auto-complete popped up.
Number One for ‘coal b’?
“coal black and the sebben dwarfs”.
This is NOT an orphan but has been widely posted on youtube for the last ten years or so. I knew the person who was among the first to post it - originally, Youtube was quick to delete it.
Not any longer.
P.S. - go watch it - it makes the top 20 in every list of “Greatest Cartoons Ever Made”.
Now you know why it was withdrawn and suppressed in 1968.
It is still a fantastic short, and you should probably look up how it was made.
In the opening, the title character sings:
“My name’s So White but my hair’s coal black”.
The original title was “So White and de Sebben Dwarfs”.
Walt Disney was not amused.
I’ll re-phrase the suggestion:
For those mature enough to know that certain highly offensive (by current standards) stereotypes were pervasive in the early-to-mid 20th century. go look it up.
I don’t know how does Copyright work in Russia, but there are many countries where the default is that producing a work doesn’t provide rights: paying for it does. A photographer who takes a picture because he wants to, it’s his. A photographer who takes a picture because he’s being paid to take it, it belongs to whomever paid. And there are many countries where yes, if you want a work to be protected you have to follow certain steps: just saying “I made it!” doesn’t provide protection. Do you expect your wallet to be protected if you leave it in the middle of the public square? Why would you have such an expectation about your inventions, your logos or your novels?
The BBC (a prominant publishing organisation) has a long-standing program of stripping ownership information out of photographs, making them orphan works.
Given the international spread of the internet, American artists can legitimately expect their works to be deliberately orphaned, even if American content providers prove, for some reason, to be clean.
