[IP] Saving the Artistic Orphans
Begin forwarded message:
From: Dewayne Hendricks <dewayne@xxxxxxxxxxxxx>
Date: September 20, 2004 4:36:38 PM EDT
To: Dewayne-Net Technology List <dewayne-net@xxxxxxxxxxxxx>
Subject: [Dewayne-Net] Saving the Artistic Orphans
Reply-To: dewayne@xxxxxxxxxxxxx
Saving the Artistic Orphans
By Katie Dean
Story location: <http://www.wired.com/news/culture/0,1284,64494,00.html>
02:00 AM Sep. 20, 2004 PT
Valuable resources are being lost to students, researchers and
historians because of sweeping changes in copyright law, according to
digital archivists who are suing the government.
These resources -- older books, films and music -- are often out of
print and considered no longer commercially viable, but are still
locked up under copyright. Locating copyright owners is a formidable
challenge because Congress no longer requires that owners register or
renew their copyrights with the U.S. Copyright Office.
Brewster Kahle, founder of the Internet Archive and Rick Prelinger, a
film collector, want permission to digitize these so-called orphan
works to create online libraries for free public access.
In a suit filed in March, the plaintiffs in Kahle v. Ashcroft argue
that multiple changes to copyright law have essentially made it
impossible for works to return to the public domain. They want to have
these changes declared unconstitutional.
The copyright structure has changed so people no longer have to
actively register and renew their work, meaning valuable historical
resources stay protected by copyright, even though no one is marketing
them. In the past, the scope of copyright was much narrower. When
copyright expired, those works could then be used and built upon by
future creators and were available to the public.
The law "imposes enormous burdens on speech without any countervailing
benefit to anybody," said Chris Sprigman, a fellow at the Center for
Internet and Society at Stanford Law School, who is representing the
plaintiff. "It doesn’t benefit the public because it keeps creative
works locked up, and it doesn’t benefit private rights holders because
these works are out of print. These changes to the copyright law make
it more difficult for rights holders to get some licensing income
because it makes them more difficult to locate."
"We want some system in place to filter out works that have no reason
for continuing copyright protection from works that do," said Lawrence
Lessig, a professor at Stanford Law School who also represents Kahle
and Prelinger.
The government recently filed a motion to dismiss the case. The
plaintiffs filed an opposition to that motion, and the government will
file its reply in October. Judge Maxine Chesney of the U.S. District
Court, Northern District of California will hear arguments on the case
on Oct. 29.
For most of the 20th century, copyright owners had to file a
registration with the copyright office to secure copyright for 28
years. If an owner chose to renew, they received an additional 28
years. Those who failed to comply lost their copyright and the work
went into the public domain, meaning anyone could use the work without
permission, for free.
Copyright law was an "opt-in" system, Lessig said.
Decades later, the United States ended the registration and renewal
process entirely in the Copyright Act of 1976. Now, as soon as a work
is "fixed in a tangible medium" -- even something as innocuous as a
doodle on a cocktail napkin -- the owner has copyright protection and
never has to formally register or renew. The term of copyright was also
changed to the life of the owner plus 50 years for new works.
Works registered before 1976 still had to renew. That changed again in
1992, when Congress mandated that all works pre-1976 were automatically
renewed, locking up yet another group of works at a time when many
would likely return to the public domain.
In 1998, the term of copyright was extended again to life of the
author, plus 70 years.
These rules are especially frustrating now that the digital world
makes it so easy to distribute content. Archivists say that digitizing
these old books, photographs and films, for instance, could be a boon
for research and education.
"Because of the indiscriminate nature of copyright today, the burden
of copyright regulation extends to work whether or not the original
author has any need for continuing protection," the lawsuit reads.
"That unnecessary burden blocks the cultivation of our culture and the
spread of knowledge."
Copyright was traditionally awarded to those who wanted to claim them.
"Formalities -- especially registration and renewal -- have
historically been a part of the copyright law since the beginning,"
said Jason Schultz, an attorney with the Electronic Frontier
Foundation. "The registration and renewal served the purpose of a
balance in copyright law and it's a balance that's required by the
constitution."
Data shows that on average, 85 percent of copyright owners never
bothered to renew their copyright after the first 28 years anyway, said
Sprigman.
The plaintiffs are currently collecting examples of orphan works to
bolster their case. In one instance, a university seeks to digitize all
the newspapers in the state, but for some of the defunct papers, it is
impossible to know who owns the back issues, Sprigman said.
In another case, an editor would like to re-publish the essays of Dr.
Leo Alexander, who wrote articles that dissect Nazi ethics for
criminology journals, but the author is dead and his heirs haven't been
found to grant permission. Schism, a monthly magazine of fringe
literature from the late 1960s and early 1970s, is another puzzle where
the copyright owner is unknown.
Critics charge the lawsuit is a re-hash of the arguments in Eldred v.
Ashcroft, which challenged the length of copyright extension terms and
lost in the Supreme Court in January 2003.
"I think they've come up with a creative approach to try and
re-litigate these issues," said Allan Adler, vice president for legal
and government affairs for the Association of American Publishers.
Adler said that while the AAP does not support the lawsuit, it is
interested in addressing the problem of orphan works.
The copyright office is also aware of the issue, but declined to
elaborate on what action to take: "We understand that people may not be
able to find the status of a work and we'd be interested in looking at
ways to deal with the situation," said Jule Sigall, associate register
for policy and international affairs at the U.S. Copyright Office. "We
have an open mind on the ways to address it."
Kahle hopes the problem can be solved soon.
"These works are important parts of our culture, and now that students
are shifting to using the internet as their library, we want to make
sure they continue to have the breadth and depth of what people have
created," Kahle wrote in an e-mail. If the case loses, "the libraries
that we grew up with will be effectively shut to this generation of
kids that use the internet as a major source of information."
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