Finding adoptive parents for “orphaned” works
Today, I was informed that the Orphaned Works bill in the US has been resurrected. One of the problematic aspects of the bill is its assumptions that any unregistered work can be considered orphaned. This is a huge change to the way copyright currently works, and is a chilling proposed solution to the problem of locating a copyright holder (which I mentioned yesterday).
Some things to consider:
- Currently, all works in the US (like in Canada) are automatically copyrighted to the creator. No registration is required. This greatly reduces the financial and administrative burden of some creators, and increases the financial and administrative burden of creators who appropriate/creatively reuse work. It also increases the financial and administrative burden of any other party who wants to use a copyrighted work in a context outside of fair use.
- The Orphaned Works bill proposes that works which are not registered will be considered orphaned, and therefore not be protected by copyright or moral rights. This will allow greater access to works outside of the context of fair use, but swing the financial and administrative burden to the creators.
- The cost of copyright registration in the US is currently $45 per work. For me to register the copyright in the US (if I were working from the US) for my modest collection of 27 sculpture would cost $1,215. For some, this could be seen as part of the cost of producing work and/or securing their ability to further generate income from their work. However, this would be impossible for artists who generate any amount of income based on a low overhead.
- Registration of copyright in the US requires the submission of a copy of the work. This is not the case in Canada (and, oddly, Canada’s registration fee is substantially higher at $65 per work for most types of work).
A quick search on Google shows that this is has been a concern in the US for some time. As Mark Simon noted, this is also happening in Europe (although I am having a difficult time tracking down information about that, amidst all the US content).
Locating the creator of a work is certainly an issue, but these proposed changes are not the solution… primarily because the solution shouldn’t create a whole host of problems for those who used to be protected.
Tags: art, copyright, law, legislation, orphan works, US
Julianna,
This is one of those areas of copyright that creators have a variety of views.
I am of the view that having “no formalities” is an antiquated concept that made sense in the 1800 when Berne was first authored, but makes no sense today. At that time the administrative costs of a registration system would have been high, and the number of people in society who could realistically participate in culture (and thus needed to clear prior rights for new works) was extremely low. Modern communications technology flips this on its head where registration would be administratively trivial, and copyright clearance has become one of the largest barriers to entry given technology has made creation, editing and distribution dirt cheap.
While I agree with the idea of having a grace period for registration (say 5 years from when it was made), and making registration free (It is a public service that benefits all of society), I disagree with the claim that registration is a burden on creators.
By the way — clearly a “copy of the work” for visual art should be able to include recordings (photographs, motion pictures — depending on the nature of the work), and not actually be a “copy”. It should be seen as part of the copyright bargain that there is a public repository of enough documentation for some person in the distant future to “duplicate” the work, much like the claim is made for patent law. Part of the motivation for granting the copyright monopoly should be that society will receive the benefits of the work when copyright expires, and that the work won’t have faded away and that history never adequately recorded. I am as worried about past creativity being forgotten as I am about new creativity not happening, so believe we need to provide adequate incentives to solve both problems.
As I mentioned in the post, one of the bigger issues regarding mandatory registration for copyright protection is the financial burden. Artists are also quite lax about documentation and other administrative tasks, but that’s something which can be addressed by the art community itself by more education and support.
Most artists I know agree that there is huge value to having a database of the work, not just for purposes of copyright clearance but for reference and promotion. I agree with you that modern technologies makes this accessible, both financially and technically, but this is either not being used by the right places or the benefits are not being passed onto artists. The registration process as it exists now IS a burden on artists, but it shouldn’t be and doesn’t need to be.