A fix for orphan copyright?

In today’s WSJ, Jerry Brito and Bridget C.E. Dooling propose that Congress “create an affirmative defense — along the lines of fair use — for those who copy a work after trying unsuccessfully to locate the copyright owner. …Of course, the user should have to share any future profits with the rightful owner of the work, but he should not have to face the stiff statutory penalties of copyright infringement that now prevent so many orphan works from being used. This would also give copyright owners who value their works an incentive to make themselves relatively easy to be found.” (“Who’s Your Daddy?”, Mar. 25, sub-only). For more on the legal problems occasioned by works whose original creators are unknown or untraceable, see Apr. 14 and Jul. 26 of last year.

7 Comments

  • Does the law specify what constitutes “attempting to find the author”? Some time ago a web site reprinted in its entirety a short story of mine with the notation that they couldn’t locate the author. A fraction of a second with Google, and they could have found me listed a thousand times over.

  • Obscenely easy solution:

    All requests for use may be entered in a database. One year after entry in the database, if there has been no response from the owner, they are free to use it.

    That is, as a copyright holder, you need to check in ONCE A YEAR. Wow, that’s onerous. Also, people wishing to actually use stuff will have incentive to find you the traditional way, since otherwise, they have to wait a year.

    Of course, this is far too easy (and reduces both litigation and bureaucracy), so it has no chance of actually being implemented.

  • I’d think that googling the author’s name (or a few distinctive phrases if the text arrives shorn of the author’s name) would be part of a reasonable effort to locate the author – especially when the re-publisher is a web site!

  • All requests for use may be entered in a database. One year after entry in the database, if there has been no response from the owner, they are free to use it.

    That is, as a copyright holder, you need to check in ONCE A YEAR. Wow, that’s onerous.

    Why should this be the responsibility of the copyright owner at all? The copyright owner did his part by, you know, creating the work in question.

    If somebody wants to “use” somebody else’s work, they can put in the effort to find the copyright owner. This is the 21st century: If you know somebody’s name and have any clue as to his field of interest, you can find him if you make half an effort.

  • I want to remind your readers of Lawrence Lessig’s proposal, one which makes a lot of sense: after a specific time, any copyright holder would have to register his copyright and pay a modest fee, perhaps $10, to keep it in force for another period of time. No damages could be recovered for any use of a lapsed registered copyright. The beauty of it is that regular re-registrations would provide a public record identifying the current copyright holder, so that the licensor has reasonably fresh contact information for licensing purposes.

  • Bill,

    Not everyone is as easy to find as you think. Of course, that’s not even the primary problem…

    Works with no name is the real problem. How are you going to find that, huh?

    Also, copyright lasts (for individuals) lif of the author +50 years (or is it 70 now?). So, someone who died 40+ years ago had the copyright… good luck finding the current holder of the copyright!

    This problem is not about CURRENT works nearly so much as it is PAST works… largely due to the ridiculous extension of copyright.

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