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Opening the Public Doman to Orphan Books 66

Posted by michael from the crowbar dept.
InklingBooks writes "In the late 1990s, when Hollywood paid an all-too-willing Congress to extend copyright terms to 90 years, an existing problem grew much worse. Many out-of-print books, including some SciFi classics, became orphans. Though still "protected" by copyright, there was no one around who could give legal permission to publish them. Their author were dead, and it was expensive and often impossible to find out who (if anyone) now owned their literary estates. Fortunately, the Copyright Office is now taking comments on how the law might be changed. See Orphan Works."
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Opening the Public Doman to Orphan Books More

Opening the Public Doman to Orphan Books

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  • Doman (Score:1, Redundant)

    by pio!pio! ( 170895 )
    Public Doman do be related to Bayle Doman?

  • Easy (Score:1, Flamebait)

    by BoomerSooner ( 308737 )
    Kill all PACs and Politicians. Problem solved.

    • Re:Easy (Score:3, Insightful)

      by Geoffreyerffoeg ( 729040 )
      Kill all PACs and Politicians. Problem solved.

      Which problem? The problem of granting a reasonable exclusive copy-right to authors without allowing for abuse? Your solution doesn't solve this at all.

  • Virtual corporate shells for orphanizing books (Score:3, Interesting)

    by G4from128k ( 686170 ) on Friday January 28, 2005 @07:49PM (#11509670)
    I wonder if one could digitally create a series of independent virtual limited liability companies for the sole purpose of testing orphanhood of abandonware books and media. Each LLC would be endowed with $0.01 in assets and be the titular legal entity attached to the free distribution of one potentially orphaned book. Should the author/heirs/owners come forward, the LLC would die instantly but not affect any of the other LLC orphan-media-representing companies.

    IANAL, but I wonder how the tools and sensibilities of digital systems (high scalability at extremely low costs) can be applied to legal and corporate structures. If one can create a new company as easily as one creates a new domain name, some interesting (and some not so pleasant) things might occur.

    • I've had never-gonna-do ideas that involve disposable LLCs as a front to legalities like the parent post's. i presume there's something i'm missing and it'd never work. I'd appreciate if someone fill in the technicalities of what common sense says wouldn't fly.

      • Re:Virtual corporate shells for orphanizing books (Score:2, Informative)

        by Anonymous Coward
        Get Nolo's books on LLC's and making your own corporation, and look up "Piercing the Corporate Veil", that's the phrase they use.

        In actuality, it's a pretty good protection IF you follow the rules.

        One of the rules is to adquately fund the LLC. In Texas LLC's have to have at least $1,000.
    • Around here it costs $85/year to the state to maintain an LLC. Easy if you're publishing, but if it's all not-for-profit $85/year/book could add up quickly.

      Ten thousand books seems like a nice number for a library of abandonware but it'd cost you close to a million bucks a year in regulatory fees just to run it. Grants might be available but there has to be a better structure. Insurance, perhaps?
    • > IANAL

      This is clear. Your fraudulent dummy corporations would not only not protect you, they'd get you in worse trouble. Look up "piercing the corporate veil".

      > If one can create a new company as easily as one
      > creates a new domain name, some interesting (and
      > some not so pleasant) things might occur.

      It doesn't work that way. There is more to creating a corporation that the courts will recognize than merely filling out some forms.

  • Incredibly important and overdue (Score:5, Interesting)

    by jhoger ( 519683 ) on Friday January 28, 2005 @07:56PM (#11509719) Homepage
    If something can be done about this problem it would be an incredible step forward in copyright law.

    Hopefully they will also consider "abandonware" not just books.

    I was lucky enough to be able to get in touch with the author of my favorite computer book to get permission republish the work under a Creative Commons license: Thinking Forth. Computer books are notorious for going out of print but they have high value to vintage computer users, and some like TF are valuable classics in and of themselves.

    Not everyone is so fortunate though. Usually the copyright holder is impossible to get hold of or they have no interest in even discussing it. Or else you are dealing with a legal department that just wants to keep any possible liabilities to a minimum. No benefit to them, so not worth it to deal with you.

  • Easy (Score:5, Interesting)

    by ebrandsberg ( 75344 ) on Friday January 28, 2005 @07:57PM (#11509734)
    How about for any work under copyright, they have to PUBLISH the owner of the copyright to the library of congress every 10 years, or the copyright is to be considered expired. In effect, you have to tell people who owns the copyright in order to maintain the copyright.

    • Re:Easy (Score:3, Interesting)

      by jhoger ( 519683 )
      It seems like some middle ground could be reached. I can see how some would see a work automatically falling out of copyright if not registered as a "trap" for the unwary.

      What if the work didn't fall out of copyright completely, if not registered, but into a gray area for some number of years, say 15. Then if someone tries to contact the copyright holder officially, some number of times, with no success, they automatically qualify for safe harbor from prosecution for violation of copyright. Now if THEY are
      • The point of the idea is you would HAVE to register. The burden is on the owner to CLAIM ownership of anything they consider valuable enough to take the time to claim. If it's not worth claiming, let it fall into the public domain so someone else can take care of providing it at a reasonable charge to others. I would even go so far as to require that for each copywritten work, if the owner can't be notified by the provided means in a reasonable amount of time, or they don't have a means to provide a copy

        • Re:Easy (Score:4, Informative)

          by jhoger ( 519683 ) on Friday January 28, 2005 @09:02PM (#11510226) Homepage
          Yeah I see your idea, of mandatory registration, but I think that has already been rejected as unworkable. First of all, it's not very egalitarian -- a big corporation would have a much easier time maintaining compliance than the small fry author or developer. The corp can have people devoted to getting stuff registered and keeping it registered.

          Yes copyright is to protect the individual and it is also to make sure the public domain is enriched (at least that's the original idea). But if someone creates something I don't care how much legal knowledge they have about getting things registered, or whether they have cash for the fee. They created it, give them some protection automatically. It's the right thing to do.

          On the other hand how can we know if the work is abandoned/orphaned if no one registers or renews their copyright? Well if it makes lots of dough, then registration/renewal becomes feasible and important. But before that time, it's too much of a gamble to go to the trouble. Most creative works aren't worth much of anything in cash value.

          So I'm suggesting that maintain automatic protection as we have it now, but shorten the term. Then require registration, but not at the risk of all-out losing copyright protection. That's the old system, and it's already been rejected, for good reason. There needs to be balance somewhere, and that's what I was suggesting.

          Similar to the Canadian system, but the escrow account for 'fees' in cast of a legal challenge is a bad idea I think.

          -- John.

          • Indeed. Companies would just renew everything they own, just like they now apply for every patent they can think of, just to be safe.

            Even if the companies go under, associations like the BSA would extend the copyrights for as long as they could for their (former) members.

        • Re:Easy (Score:4, Informative)

          by rossifer ( 581396 ) on Saturday January 29, 2005 @01:39AM (#11511692) Journal
          The point of the idea is you would HAVE to register.

          The problem with this idea is that it directly conflicts with the Berne Convention (i.e. international copyright law). The Berne convention specifically prohibits any formality as a condition to the "enjoyment and exercise" of copyright.

          In order to make your suggestion credible, you'll have to argue the benefits of the US abandoning the primary international convention on copyrights. Not that there aren't strong arguments for doing exactly that, but be aware that there are also strong arguments for remaining in compliance with the Berne convention. Primarily, we can ask that people in other countries be held to those international laws that we also respect.

          Regards,
          Ross
          • You could set damages to a maximum of $1 if the copyright isn't registered.

            If the book isn't being published by the copyright holder, the "harm" done to them is probably a lot less than that anyway.
  • I imagine that a number of good comments will be recorded here (and a number of truly awful comments...). I would encourage everyone who writes a +5 Insightful or similar comment to take that comment and submit it to the Copyright Office.

    In that way, rather than them reporting that they received 5 comments, 4 of which were from Big Media and 1 from some cranky old bastard from North Dakota, they will have to acknowledge that it is an issue of great public interest and they will have well reasoned comments

  • EFF (Score:3, Interesting)

    by BrookHarty ( 9119 ) on Friday January 28, 2005 @08:25PM (#11509928) Journal
    I like the EFF's idea, that copyright is for 20 years, and after that, you only need to pay 1 dollar to extend it each year. That way old copyrights can return to the public. Also make a maximum of 100 years per copyright. Solves most issues, more things return to the public domain that are not used anymore. And people can extend copyrights if used.

    I would like a mix, 60 years, and the extension costs more each time. At 60 years, its 100, 61 its 200, then 400, so on, that way it gets increasingly costly per year to keep copyrights. Tts a way to tax the copyrights, after 80 years, unless its a money maker, the owner wouldnt renew.

    And on the side, this funds the copyright office to do more indepth reporting and watching for duplicate copyrights or invalid search.

    EFF has a good start to handle copyrights, wish they had more political power. I feel sometimes like the EFF is like the ACLU, always in court loosing, or working on the wrong rights. (My perspective anyways..)

    • Excellent idea. I've heard it before, but can't recall where. It is definitely a problem with older books that are virtually impossible to find, but can't be reprinted (or in this modern age, scanned and put online).

      The last copyright extension allowed an exception allowing libraries to copy books in the last 20 years of their copyright if new editions are unavailable, but practically speaking this will have little effect. Something much better is required.

      The U.S. is obligated by international treaty
      • The U.S. is obligated by international treaty to a minimum copyright period - I'm thinking it is 28 years?

        1971 Berne Convention [wipo.int] says protection extends 50 years from the 1st Jan after the authors's death (for books anyhoo). WIPO [wipo.int](the 1996 update) does not change the term of duration, except for photographic works. (that's photos, not movies BTW)

        The current extended duration is an extension produced by private agreement between several member states, as provided for in section 20 of the convention, but a
  • Ok, how about this approach?

    Copyright grabts you an exclusive first-sale right. If you stopp selling something, then obviously you do not want this right anymore.

    Copyright should include an obligation to make the work available to the public, in exchange for the exclusive sale right granted to the copyright holder by the public.

    I see no reason why "hording" should be allowed. If the copyright owner is not interested in selling the work anymore, be it book, game, software, or whatever, then copyright shou
    • Copyrighted works are also bartered.

      How would you deal with copyright protection for GPLed software?

      I think it doesn't have to do with *sale* so much as *available.* Available for sale is only one kind of availability.

    • How would this apply to closed source software? Because the work isn't published, they lose their copyright on the code, and all the protections that go with it. Regardless of how you stand on closed-source, people should still have the right to produce it.
      • simple, have an exception that any work which has never been published need not be published to maintain copyright.
      • ah yes, seems like we would need some sort of exceptions for this.
        Maybe only apply it to works available to the public at one time.
        So in-house solutions would not be affected either.

        Still, these non-published works should still be submitted to the copyright office for archival, otherwise when the copyright expires, there won't be anyone around to release it.
      • Copyright is supposed to encourage the publication of new works and ideas, by giving them a limited time protection before they enter the public domain.

        I believe if we follow this to its logical conclusion, software should only get copyright protection if the source code is published.

        This obviously wouldn't be "open source" as we know it, but it would still be an improvement.
        • Agreed, code that is not published should not be protected by copyright.

          Closed code for commercial software is already protected as a Trade Secret, you could not release it without breaking the law anyway. Why is it then also granted copyright?

          Copyright is granted as a reward for making your work publically available. Closed source programs should not qualify.

    • If I write a novel, I should have a certain degree of control over it. Namely I don't want people writing sequels without my permission. I'm fine with Author's Life +5 to 10 years. The main reason for the plus is someone who writes a very profitable book and dies, a real shame to leave their family penniless while other publish the book for nothing. 10 years is plenty of time to accommodate that. Heck 5 years is, but some things are slower than others (say a screenplay, which would need to be turned in

      • How about...5-10 years? Maximum? Not -after- the author dies, 5-10 years PERIOD. Mandatory registration (free, but MUST register the work with the copyright office to gain ANY type of protection). This is PLENTY of time to make some money off the work if you're going to.

        But after that, the money dries up? Well, yes. Most of us have to KEEP doing good work in order to make money, we don't do a good job once and profit the rest of our lives. (Plus, with the "Copyright Perpetuation Act", for our children and

        • No one deserves to profit their entire life for doing a good job once, no one deserves lifetime (BEYOND lifetime!) monopoly of an idea.

          You're making this sound like a public utility or something. Is it so outrageous to pay Micky Spillane when you buy a copy of a Mike Hammer book? Will you starve without I The Jury? Will you be unable to write detective stories?

          And yes, of course Spillane learned from the previous works of others, but he managed to do so without copyright violation. Can't you do the same?

          • You're making this sound like a public utility or something

            That is exactly what it is ".. to advance science and the art"

            Copyright was meant to help the public - not the copyright holders

            as for term i say 2 years - ofcause any new version gets its own 2 years - that way forcing new versions (that be movies, books, software etc)
            to come out or the publisher to loose his/hers source of income.

            If they dont want to make new books they sould not make any money.
            • To advance science and the arts by providing incentives for creative people, yes. Why should their work belong to you?

              Remember also that it's not at all like patents. Disney doesn't have papers on "a device to entertain children through the use of a small animated rodent with a high-pitched voice," they just have the rights to Mickey Mouse. You want to create a cartoon character? Go for it. Is it so unreasonable to ask that you, I don't know, create something?

              • Is it so much to ask that those who wish to make their living creating, I don't know, CONTINUE doing their job (creating) rather then do it once, sit back, and collect the money?

                Mickey Mouse enters the public domain. This does not -prohibit- Disney from ever making money off the character again. This simply means that others can make use too, enriching the public domain. And if Disney wants something else with exclusive control for a few years, they have to create again.

                • I dunno. Is it too much to ask that those who enjoy the work pay for it? How is it that you're entitled to the pleasure just because a couple of years have gone by?

                  Remember, by and large we're not talking about the light bulb here. You can make a case that we need those. You don't need Jessica Simpson's latest now, nor will you in a couple of years. You just want it, and as cheaply as possible. I'm just asking what entitles you to coast on her work (such as it is.)

                  • If you create something, then you are the owner of it, you automatically have a moral right to the object.
                    you can keep it, sell it, copy it, destroy it, whatever. few ethic schools of thought will deny you this right.

                    Bat what you do not have by default, is the exclusive right over every copy of your creation.

                    This right is granted to you by the public for a limited time only, it is essentially a contract with the the public, as a reward for creating something for the public.
                    This contract is a relatively re

                  • Who's "entitled" to anything? You're not "entitled" even to read this post. But since I'm choosing to offer it to the public, the public NOW has the right to read it. Of course, if you put a gun to my head and told me to get to writing, that'd be wrong.

                    You are also entitled, if you like, to quote it, paraphrase it, reuse it, post it somewhere else, argue with it, criticize it, expand upon it, contrast with it...that is the benefit of having work available to the public. It is not just about being "entitl

                    • Give the creators their monopoly, if that's how it must be. But not for more then a couple of years. That's plenty of time to make money off the work if it's worthwhile. (Likely, it's not enough time to get rich, nor -should- it be. Everyone else makes a LIVING for doing a good job, not a killing.)

                      Forgive me if I suspect that we've found the real problem here.

                      First off, some people do, in fact, make a killing for doing a good job. You may not like it, but nobody in the NBA holds copyright on the jump sho

                    • Philip K. Dick's wife should retain the right to make money from his work, for 50 years from time of creation. Disney should've been forced to give up Mickey mouse long ago. They already made their money off that mouse, it's time for him to be public domain and let other artists make him funny again.

                      Copyright was created to benefit society, not Disney corp.

                    • Fifty years isn't unreasonable, to my mind, and dating it from creation rather than the creator's death removes any incentive to murder the author.

                      Still, when I turn on the Cartoon Network it sure doesn't seem like progress in the cartooning arts is being held back by Disney's copyright on Mickey Mouse. New characters are being created pretty frequently, and licensing arrangements found with older ones. I don't feel the lack of guest appearances by Pluto on Sealab 2021.

    • I see no reason why "hording" should be allowed. If the copyright owner is not interested in selling the work anymore, be it book, game, software, or whatever, then copyright should expire.

      Just because I've written something and distributed at some time doesn't mean I want it distributed in the future. I've had the experience of writing something that I then had to withdraw. Your system wouldn't allow me to do that. Also, why should selling the work be relevant? Surely distributing the work should be the

      • As mentioned in another post, "selling" was a bad choice of words, what I meant is of course "making available".

        As to the withdrawing: You can not withdraw something with the current copyright. Once you have distributed it, the people who received it may keep it forever, or give it to someone else. Once the copies have been distributed, there will always be some on the market.

        All you can prevent (and for a limited time only) is the production of additional copies, until the copyright expires.

        (Not to ment
  • I was looking at a 1800's vampire story out of a penny dreadful called Varney the Vampire, or The Feast of Blood (1847) [virginia.edu], seems the University of Viginia has made a claim on it as to copyright. While I admit it's nice of them to transcribe it to etext my question was, do they have a right to claim it for copyright just because they transcribed it into a different media or is this meerly FUD?

    True they claim that it's not availible for commerical use but if I was to use it as basis for say a Graphic Novel or

    • do they have a right to claim it for copyright just because they transcribed it into a different media or is this meerly FUD?

      They do have a copyright claim - it's a "derivative work". Even if they didn't (a what-if) then they could still impose copyright-style contractual restrictions on it, as their copy is theirs to do with as they wish, so you'd be no better off. It's been tested in court both in the US and on my side of the pond in the UK (most recently with 16th century chamber music) repeatedly. It

      • Re:Hijacking by Universities. (Score:4, Informative)

        by infonography ( 566403 ) on Saturday January 29, 2005 @06:37AM (#11512462) Homepage
        Looks like a hole a mile wide here. A Derivative work would only apply to a commentary on the subject and only to the original portions. Under fair use, I can use a sample of a work, be it a bit of text or picture or sound in context with building an arguement or acting in a journalistic fashion and reporting about it. Since I am not using the whole of it, it's fair use. I could use part of your comment thus;

        "your own unrestricted copy of a PD text" - CaptainCheese (724779)

        that would be fair use. but to use it without CaptainCheese (724779) it would be clear plagerism. If I were to copy the full funtionally unedited text of your post (I won't), then bracket it with text about where it came from then would I now be the possessor of the text's copyright? It's like saying a photocopy becomes a legal copyright, simply by making a copy.

        On your second statement, A demand for a pure source like a untainted copy of the original is comical. It's like demanding a printer who makes bibles to obtain a copy of a Gutenberg original, or maybe even a scroll from the 1st century.

        All they did was to copy the text into another form and effectively transmit it. Were I to walk into a Metallica concert and tape it I would be violating their copyright but if instead of recording it I used a transmitter and had a receiver record it elsewhere would that make it legally mine? This is not a copyright, it's pillage or in this case graverobbing.

        Since in this case the subject work is about a vampire it's rather funny.
      • The business of proclaiming a new copyright to an old work is mostly FUD, though one does have to be careful because the look-and-feel of the new version may carry some protection of its own -- the typesetting, changes in punctuation and spelling, etc. -- though even these carry less protection than is usually claimed.

        More to the point, the organizations that copyright their new transcription are simply used to wanting to claim ownership of anything that might possibly make them money in the future, with l

    • Re:Hijacking by Universities. (Score:1, Informative)

      by Anonymous Coward
      1) Get your hands on an original - not the 1970 version

      2) Type it in

      3) You have a piece of work you can distribute freely

      The university might have certain rights to the work they have typed in, however following steps 1 - 3 and you are in the clear

      IANAL - I am an author :o) and wouldn't mind copyright periods to be shortened to say 25 years from date of first publication, and then some sort of percentage royalty scheme from the gross made from the selling of your work by others for a period of 25-75 yea
    • I would bet claiming copyright on something like that wouldn't hold up in court, based on the precedent of Bridgeman Art Library v. Corel Corp. [wikipedia.org]. Admittedly that case only dealt with two-dimensional images, but the basic principle they held is that "slavish" copying of a public domain work isn't good enough to merit new copyright protection, no matter how much work it took. Of course, it would still be a pain in the ass to establish this in court if they decided to go after you.
  • Why don't you make these comments to the site instead of here. Or at least in both places. I don't think the Copyright Office is going to come here to read the comments.
  • Why not have the copyright fall over into a sub category where the copyright still exists and anyone who wants to use it pays, directly to the copyright office, a set License fee per unit based on a % of the wholesale price the item is sold for to use it for commercial use but allow unlicensed use for all non-commercial purposes?

    A small % of the fee could then be used to fund the work involved to document the use and fees payed the rest can go to the copyright owner should one surface and the work could
  • The students at FreeCulture.org have created a Web site to encourage people to comment:

    http://freeculture.org/orphans/ [freeculture.org]

    I hope you'll submit.

    Gavin
    Florida Free Culture [freeculture.org]
  • What's a Doman and why do we want to open it?

    -

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