"Collecteana"'s blog has some interesting commentary on the difficulties of preserving aging media. But I wonder... is preservation necessarily encouraged by making it easier for works to slide into the public domain? It depends on whether there is some collector waiting there to appreciate them, and whether the rights defining entry and exit from public domain precludes that collector from profiting from a restored version. As it is now, of course, copyright law does not pose an obstacle to someone's restoring a single copy.

The phrase, "copyright law is a blunt instrument," caught my eye. I have often used that description of law in general. It strikes me that it is less true of copyright than of many other forms of law. The sanctions for violating copyright are usually civil... it can be negotiated around and displaced by private agreement.... there are plenty of exceptions. And indeed part of the problem with copyright is not its breadth, but its fragmentation--the difficulty of pulling together the different rights all needed for a license.

What might be more true in this case is that the absence of a registration requirement (or other formalities) associated with a continued claim of copyright is something of a blunt instrument--it transforms anything written or imaged into a copyrighted product and potential orphan. But it seems that people in general are happy with the no-registration regime.

posted by Solveig Singleton @ 3:22 PM | Orphan Works , Public Domain

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An interview with Brewster Kahle of the Internet Archive. It's interesting to me that the assumption behind the "archivists versus copyright" thrust of argument is that archives must be both public domain and open, and, quite likely, undertaken by not-for-profit enterprise. Why not a for-profit archive? Open for a small fee? I suspect if/when the costs of negotiating with copyright owners fall lower, one will see more such archives; most of the ventures are not-for-profit now because they are premature, and the economics isn't right. One wonders if some of these venturers might do better expending energies in developing licensing forums and mechanisms, before they go about their archiving.

In any case the automatic equation of "out-of-print" works with "works that ought to be in the public domain" is grossly overreaching; I suspect and hope that the analysis is more sophisticated.

posted by Solveig Singleton @ 3:27 PM | Orphan Works

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The Gowers Review came out today and the UK Chancellor of the Exchequer, the Right Honorable Gordon Brown (the expected next Prime Minister when Tony Blair steps down as promised) wasted no time promising to incorporate part of the government-commissioned report into UK law. In Brown's pre-budget report speech today, he had this to say:

It is because the future success of our creative and knowledge based industries depends upon Britain having a robust intellectual property regime that the Secretary for Industry is announcing today he will tighten the penalties for copying and piracy while giving individuals new rights for personal use; and he will introduce a new fast track protection for small companies to safeguard their trademarks.

Encouraging words from the Rt Hon Brown. And while I'm not through the 150-page Gowers Review, there's some encouraging language there too. How does 10 years in jail for piracy sound?

UPDATE (12/8/06): My former colleague Dugie Standeford has an interesting article on the Gowers Review on IP Watch. Noting the Review calls for action on orphan works, Dugie writes this:

Several recommendations aimed to recalibrate the balance between consumers and rights-holders through various “fair use” exceptions to copyright. One urged the government to seek an amendment to the 2001 EU Copyright Directive to add an “orphan works” provision making it easier for artists to re-use copyrighted material whose authors cannot be found.

The proposal is predicated on the premise that either the creator of a particular work is unknown or there are problems with clearing the rights to it, said London IP attorney Laurence Kaye. But as more and more content is digitalised, creators will have readier access to tools enabling works to be easily identified via metadata. Legislating now will remove the incentive for artists to use those tools, he said.

The more I speak with watermarking and other tech experts, the more concerned I grow about rushing to legislation on orphan works here in the US. Again, this is an area where we don't want to cut off assistance from the market, nor do we want to unnecessarily restrict rights of artists. She also quotes Kaye on the notion of fair use:

The report called for creation of a private copying exception. The proposal that consumers be allowed to copy content in order to shift it across different formats prompted AIM to warn that such a right, without an accompanying levy on physical media such as CDs and DVDs, “may well be opening the floodgates to uncontrolled and unstoppable” private copying.

Kaye argued that creating US-style “fair use” rights is “very risky” because it could lead to a new set of exceptions atop those already granted by existing UK case law. But Johnstone said, “Plans to allow people to copy CDs for personal use from 2008 - which is illegal at the moment - is a welcome recognition of the need to improve consumers’ rights.”

As Jim has pointed out, the recording industry has said it doesn't necessarily object to copying from one's own unprotected CDs to one's personal device here in the US, and as the Gowers review points out, the number of iPods being sold in the UK relative to the number of iTunes songs downloaded suggests many UK consumers are copying. But Kaye is right to be wary about piling up exceptions; even "fair use" champion Rick Boucher (D-Va.) has told me on more than one occasion that while he promotes more fair use aggressively, he's wary of creating specific carveouts because a few months after passage those specific carveouts might not apply to current technology.

If anyone's curious, I am still working my way through the Gowers Review. It seems I no longer read as fast as Dugie.

posted by Patrick Ross @ 11:25 AM | Fair Use , International , Orphan Works

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If you're in Washington Friday, October 20th, join the PFF/IPCentral team for lunch. We're hosting a Congressional Seminar from noon to 2 pm titled "Copyright 'Modernization'? What is the Role on Capitol Hill?" Our panelists will be three top Hill staffers -- David Jones (Orrin Hatch, Senate Judiciary), Joe Keeley (Lamar Smith, House Judiciary) and Amy Levine (Rick Boucher, House Judiciary and Commerce). The lunch, and the event, is free, and you're encouraged to ask questions. We'll examine priorities on the Hill for various copyright legislation proposals, such as licensing reform of Sec. 114 and 115 of the Copyright Act, the analog hole, the audio flag, and orphan works. You can register here.

posted by Patrick Ross @ 6:06 PM | Legislation , Orphan Works

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The future of the orphan works proposal that seemed like a reasonable approach earlier in the season is now rather in doubt. The problem of the visual arts now looms rather larger than it did early on. That is, the search for the holder of a copyright in a drawing, photo, print, sculpture, or other image is much more difficult than for textual or titled works, which can be entered in searchable registries. Printed textiles are a particular concern. They are often counterfeited abroad and imported back into the U.S., raising the possibility that the copies, lacking a copyright notice, will be represented as orphans and copied in turn, with each copy then becoming susceptible to further copying. One solution might be to confine the effect of the rule, for now, to textual works (including music). This is, however, not very satisfying since there are so many images combined with text.

My take is that the support of my colleagues for the "reasonable search" concept notwithstanding, there are real problems here. Anyone care to respond?

posted by Solveig Singleton @ 1:25 PM | Orphan Works

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My, what a thicket this Sec. 115 reform is turning out to be. This is legislation designed to provide digital music services with a blanket compulsory license for digital music, essentially. A reason to support this legislation? Well, right now music services are paying money into escrow but none of that money is going to artists; presumably this legislation would change that (although I think a rate-setting action at the Copyright Royalty Board would still have to happen). So paying artists is good. Reasons not to support this bill? Well, my first would be my extreme allergy to a blanket compulsory license, which is a phenomenal violation of property rights. But lots of other people have gripes about this bill.

Launched as a deal between the music publishers (NMPA) and digital music services (DiMA), the bill, known as SIRA, passed the House Judiciary IP Subcommittee June 8th. A revised version was included in a bill with orphan works legislation called the "Copyright Modernization Act of 2006." It hasn't been formally introduced yet; I attended the House Judiciary Committee markup yesterday where it was supposed to move, but sponsor Lamar Smith held it back. He told me afterward that some tweaking needed to be done and a few interested parties had some things to say about it.

My spies tell me that is the understatement of the year.

Continue reading More on Copyright Modernization . . .

posted by Patrick Ross @ 11:10 AM | Legislation , Markets , Orphan Works

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The House Judiciary Committee approved this morning with little objection a bill that creates a pilot program designed to allow certain U.S. district court judges to become experts in patent law and take cases specifically rather than have them be assigned randomly (if the judge assigned it chooses to pass it on). The bill, by Reps. Darrell Issa (R-Cal.) and Adam Schiff (D-Cal.), was modified at the markup at the request of Issa. It states among other things that for this reform to be implemented, a court must have at least 10 judges, and at least 3 must opt into the system. The idea is to reduce the risk of plaintiffs forum-shopping.

House Judiciary IP Subommittee Chairman Berman (D-Cal.) said he liked the forum-shopping revision, but emphasized there remains a need for comprehensive patent reform. Schiff agreed.

Issa, former chairman of CEA, knows a bit about patents. He became rich as a car-alarm designer; his voice is the one you hear telling you that you're too close to someone else's vehicle (do people still use those alarms?).

I was at the markup to see action on the Copyright Modernization Act of 2006, which is basically a combination of the Section 115 Reform Act and the orphan works bill. My understanding is that as I type this, representatives for artists, music publishers, songwriters, labels and others are meeting with House Judiciary IP Subcommittee Chairman Smith (R-Tex.) and Berman -- or their senior staff -- to iron everything out. Smith told me after the markup that he thought they were very close to resolving matters, and he was bullish on the bill being marked up next week.

I'm still trying to figure out how I feel about this bill; am open to thoughts from one and all.

posted by Patrick Ross @ 2:27 PM | Legislation , Orphan Works , Patents

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The illustrators are continuing their assault on orphan works legislation, which still hasn't come up for a full House Judiciary Committee markup. I've said before that the illustrators have a case for concern (see here and here and here). Is their concern strong enough to justify stalling the bill? Are they merely allowing the perfect to be the enemy of the good? Or is there some legislative solution that would address some of their concerns? I argue that last point to be the case, but I don't think the illustrators will agree with me.

Continue reading Orphan Works and Litigation . . .

posted by Patrick Ross @ 12:55 PM | Free Culture Movement , Orphan Works

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My colleagues have written supportively of the orphan works proposals developed by the Copyright Office and the bills in Congress. I'm a little more uneasy, but haven't turned my full attention to why. It seems that the proposals are perfectly reasonable for easily searchable texts or other works with authors and titles. Less easily searchable are works such as sculpture, photographs, and so on. These categories were perhaps seen as a niche. But the niche seems to be growing. Concerns with the legislation have been raised by textile manufacturers. The problem they face is rampant copying of their designs in Asia and other places. In the copyright process, the copyright information is stripped from the designs. They are then reimported into the United States, where they become... orphans. Potentially proliferating copies of copies of copies, each of which itself becomes an orphan. Problematic. We'll have to see what emerges.

posted by Solveig Singleton @ 2:14 PM | Legislation , Orphan Works

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I find myself in a continuing dialogue between parties for and against orphan works legislation, and my own conflict between wanting to see legislation pass yet also ensuring small artists aren't disadvantaged has me feeling pretty torn.

Last week I wrote about the plight of illustrators in the debate, then posted a repsonse to their arguments culled by significant feedback I received from my post. The illustrators Partnership of America informed me that they have crafted a FAQ based on that post, and I'll quote from it below.

First, let me inform our readers that PFF has published this morning the transcript of our March 31, 2006 Congressional Seminar on orphan works. That event, ably moderated by Solveig Singleton, featured among others a librarian, an attorney representing photographers (and sharing similar concerns to illustrators) and Jule Sigall, primary author of the Copyright Office report on which the House legislation is based. I also call attention to a thoughtful writer I've just discovered on this subject, Wendy Harman.

Continue reading The Illustrators Respond on Orphans . . .

posted by Patrick Ross @ 11:20 AM | Orphan Works

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posted by Patrick Ross @ 11:43 AM | Orphan Works

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posted by Patrick Ross @ 12:20 PM | Orphan Works

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posted by Patrick Ross @ 2:07 PM | DMCA , DRM , Free Culture Movement , Legislation , Orphan Works

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posted by Patrick Ross @ 3:35 PM | DMCA , DRM , Fair Use , Legislation , Orphan Works

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posted by Solveig Singleton @ 11:35 AM | Art , Legislation , Orphan Works

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posted by Amy Smorodin @ 5:31 PM | Orphan Works

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posted by James DeLong @ 3:15 PM | Orphan Works

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