Give Orphaned Works A Home

David Rothman at TeleRead is alerting us to something we should have done a long time ago, but, hey look, a caterpillar….

Really, the US Copyright Office and Library of Congress are accepting comments to comments on the issue of “orphan works.” But, the deadline is today at 5PM EST today!

James Boyle, addressed some of these questions in a column in the Financial Times recently:

Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. What do we do? We extend the copyright term repeatedly on both sides of the Atlantic. The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.

There are of course several sides to every story. One side is represented by the Illustrator’s Partnership, which argues strongly for continued copyright protection, even when the copyright owners can’t be identified or found. But I’m a good New Englander, and I can respect hard work, so I find myself nodding as I read the following from their comments:

Authors’ rights are their incomes. The exclusive right to publish or not publish gives the artist the right to determine what compensation is due for usage. Most freelance artists and writers have no other source of income but their creative work and the accumulated value of that work is no different than the value that accrues to one’s home. Therefore the copyright that protects creative work does not deprive the public of an “entitlement” any more than does the ordinary ownership of private property.

But I’m also struck by another graph from Boyle’s FT column:

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. In any other field, the officials responsible would be fired. Not here.

And I start putting it together: Copyright law has been extended repeatedly and now protects the works of long-dead authors, but only 4% of those works are commercially valuable after 20 years. So we have to wonder what harm this causes, because this would add up to a big “so what” if it doesn’t hurt. Right?

In her comments, Sarah E. Thomas, librarian at Cornell University describes how copyright law affected a digitization project at the Albert R. Mann Library. The staff identified 343 items that might still be protected by copyright. Of those, they were able to easily identify and contact the appropriate copyright holders and receive complete permission to republish 98 works. For the other 198 works, however, they could not identify the copyright owner, and invested the efforts of $50,000 in staff time tracking down the current copyright owners.

Tracking the children of deceased authors was hard; so was trying to track the history of changes to publishing firms as they changed names, merged with other firms, orwent out of business.

In the end, they received permission to re-publish from every copyright holder they could reach, but there were a number of works that they didn’t get permission on. Here’s two snippets that explain:

In 47 cases, or 14% of the total, we were denied permission to make digitized versions of the work available. In most cases, though, this was because the person we contacted was unsure if they really could authorize the reproduction or further dissemination ofthe work.

[…]

the saddest group of letters was from 38 authors who wanted their works made available as part of the project, but whose publishers (the current owners of the copyright) never responded to our inquiries.

Still, the risk of lawsuit is too great, even for Cornell University, and the library is unable to make a large portion of these works available because they don’t have “clear permission to disseminate.”

Thomas offers a number of rich examples, but the following is especially powerful:

In our Rare and Manuscript Collections, we have some manuscript illustrations done by a Japanese-American artist in the relocation center at Poston that have been published with permission in the past. The current copyright owner has since disappeared and the paintings have become orphan — and no future scholar can publish them again until they enter the public domain, some 120 years after the date of the events they depict. [link added]

Her comments really merit a full read, but her conclusion is inarguable:

The Cornell University Library wants to make material available for the benefit of students and scholars around the world. Without some provision for orphan works in the law, however, copyright will continue to limit and hamper the growth of new knowledge.

Clearly, and contrary to the arguments of the Illustrator’s Partnership, creativity, free speech, and culture are harmed and limited when orphaned works are unnecessarily handcuffed by copyright.

My own thoughts are much in line with David Rothman‘s comments. His points are spot on, and I agree whole-heartedly with his conclusion (severely chopped below):

A robust public domain could encourage young minds to absorb more books, regardless of family wealth or lack thereof. Today’s students are tomorrow’s professional creators. Simply put, I believe that your present requests for comments about orphans should be only the start of a thoughtful process of rebalancing copyright law to make it friendlier to libraries, archives, schools and the public at large.

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