How Big An Issue Are Orphan Works?
from the longing-for-a-public-domain dept
For a few years now, there’s been an effort underway to pass “orphan works” legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the “problem” of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn’t an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such “formalities” (even if it goes against the sadly out of date Berne Convention rules).
In the meantime, though, since that doesn’t seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it’s really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can’t just declare the the copyright holder can’t be found.
Of course, another complaint against orphan works legislation is that orphan works really aren’t much of a problem, as they’re somewhat “rare.” How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive:
- 3 million orphan books
- 129,000 orphan films (potentially up to 225,000)
- 17 million photographs
The report also mentions that 95% of newspapers from before 1912 are orphans, which seemed odd to me, since it seemed like anything published in 1912 should be in the public domain. The report notes that this is actually part of the problem, since copyright status depends on a variety of factors, and even works from pre-1912 may still be under copyright in Europe. As it notes “only material from as far as pre-1870 may relatively safely be assumed to be in the public domain.”