Congress Considers Reform On Orphaned Works 153
I Don't Believe in Imaginary Property writes "Bills have been introduced in both the House and the Senate to liberalize copyright law in the case of orphaned works. The almost-identical bills would limit the penalties for infringement in cases where the copyright holder could no longer be identified. The idea is that one could declare their intent to use the work with the Copyright Office and if the copyright holder didn't care to respond, they would only be able to get 'reasonable compensation' instead of excessive statutory penalties. Public Knowledge has more details on the bills."
Reasonable Compensation (Score:5, Insightful)
Re:Reasonable Compensation (Score:5, Informative)
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This argument is pure horse shit and frankly I'm getting sick of the "Think Of The Little Guy" defense. Registration of copyright can be done online for little or no cost IF Congress mandated it with this legislation. All registration is is a big database. No reas
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Additionally, making everyone who invents something, ever, pay a small fee to the government, is a very prohibitive tax.
Re:Reasonable Compensation (Score:4, Insightful)
That having been said, I'm not a fan of this particular bill. Shorter terms, non-automatic renewals, and timely registration as a prerequisite for copyright are much better, even though they'll take more work to achieve. I'd rather pursue that directly, rather than waste time on these mediocre reforms.
Re:Reasonable Compensation (Score:5, Insightful)
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So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee)
Re:Reasonable Compensation (Score:4, Interesting)
Yes, that's right. Copyrights exist to cause authors to create and publish their works so that the public domain can be more enriched than it otherwise might be. However, if an author in country A simply doesn't care about -- i.e. wasn't incentivized by -- a copyright in country B, then why would it make sense for country B to give him the copyright? If it was important to the author, he would pursue it. If it is not important to him, he'll ignore it.
If the author apparently doesn't care, why should I? And since the author seems to have been sufficiently incentivized by something else (possibly country A's copyrights, possibly something else altogether unrelated to copyright), it would be pointless to give him a copyright. It would be liking paying for something that's being given away for free!
I am in the US, and I am really only interested in the US reforming its copyright laws. Since the US is a large market for many works, I have no doubt that very, very many foreign authors will register for copyrights, just as our domestic authors will. And if they're uninterested, then why give them what they are unwilling to get themselves? Maybe it will result in the work being made more popular here than it would be by an author who ignores the US market. That's a plus. And if nothing comes of it, then there's really no harm, and there is still the slight benefit of the work being available if that changes, which is unlikely.
I would like to point out that I'm not playing favorites here; I think that the US should unilaterally offer national treatment. That is, we should permit foreign authors to get copyrights on exactly the same basis as US authors, with completely identical treatment. Further, that we should do so, regardless of how foreign countries behave toward us. After all, the mission of copyright is to spur the creation and publication of works in order to get them, unencumbered, into the hands of the public. The nationality of the author is quite irrelevant. Ditto for the language of the form; let there be Spanish and French and Arabic and Chinese forms as well, with enough translators at the Copyright Office to process them.
I would hope, of course, that other countries would follow our example and also unilaterally grant national treatment to foreign authors. I'm not too worried about it, though. Remember, the US did perfectly well with not being a member of the Berne Convention (which sucks, btw) until 1989. In fact, joining it (and the ramp-up involved) is the source of many of the ills we currently suffer!
Meanwhile, I'd like to point out that, AFAIK (I'm not a patent attorney), there is no reciprocity in the patent system. An inventor has to file for a patent in the US, if he wants rights there, in Japan, if he wants rights there, etc. having to deal with the local rules, which can vary wildly, retaining local experts, etc. A registration formality for copyrights would be a piece of cake, by comparison! I can't imagine the paperwork being difficult (name of author, title of work, etc.), and the various national post offices seem to have international mail under control, so deposit would be no problem. Unlike with patents, authors wouldn't need to hire local lawyers to handle the registration (though I wouldn't mind if they did, being a copyright lawyer myself!), and with the falling US dollar, what is a token fee here is likely even less of a hurdle for many foreigners.
How is this bad? It means that if someone from Pottsylvania writes a book for local consumption, and never bothers to register it with the US, that it is in the American public domain, but does that harm him? No, not really; he was ignoring the US anyway. And if someone else does use the book, say, as the basis for a movie, well then at least something productive happened, instead of the author allowing it to rot on the vine. The author isn't being forced, he isn't bei
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It was solved by the US opening the copyright system to foreign authors, provided that they complied with our formalities. We had this working perfectly well, without bothering with Berne, for about a century. I don't even propose reviving the manufacturing formality, so it would actually make things even easier than it was before.
This being said, I agree that registration is probably a better system, now that the internet will allow i
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It's irrelevant. The TRIPS agreement [wikipedia.org] harmonizes intellectual property laws worldwide. It incorporates most of the Berne Convention [wikipedia.org] on cop
Berne three-step test (Score:2)
[TRIPS, one of the core WTO treaties,] incorporates most of the Berne Convention on copyright, which requires no formalities (e.g. registration) to obtain a copyright.
But does Berne allow contracting states to require formalities, such as the payment of tax, to enforce a copyright? In the case of The Article's proposed public privileges in orphaned works, I would guess such privileges would pass the Berne Convention's three-step test [wikipedia.org]:
Berne and intellectual property tax (Score:2)
The U.S. can require registration to obtain statutory damages because that isn't a right protected by Berne. Other rights (reproduction, distribution, etc) can't require formalities, hence you don't need registration in the U.S. for other remedies (injunction, actual damages, etc).
And the point of this bill is to limit the scope of statutory damages. As I understand it, the copyright owner can recover actual damages (the back royalty) from the Copyright Office. Does Berne ban governments from withholding taxes, alimony, child support, etc. from payment of damages to the prevailing party in a lawsuit?
Besides, works copyrighted by MPAA members aren't Berne works; they're United States works.
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Easier said than done. Not such a good idea anyway. The U.S. benefits far more from international harmonization than anyone else. Don't throw out the baby with the bathwater.
Compensation for copylefted works (Score:2)
Er... read the bill. (Score:2)
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This orphaned works bill wouldn't change that at all, rather, only registered works would be affected, and, if the rights holder is not reasonably available, the work effectively becomes unregistered.
This still really only benefits big busin
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Non-registration does not preclude compensation. It precludes being awarded damages when someone uses your unregistered work without your permission.
It seems to me that this simply eliminates damages as a primary vehicle of compensation.
If you have a work you believe to be extremely economically valuable, you simply participate in the registration system. If you aren't sure, you do a risk/benefit analysis of participating. If you get it wrong, you'd be entitled to
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I would agree with such a seven year scheme, with one minor condition: the initial seven year copyright period should begin on the date of first authorized publication in a fixed form. Until published with the authorization of the creator, any material should be the property of the creator, period, with no right of anyone to publish it during the life of the creator. This protects against a certain class of abuses of works that otherwise would not be protected at all for lack of registration (someone publ
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That's pretty unfair to individuals who hold copyrights. I wouldn't be willing to sell my copyrights for any amount of money. Saying "set the value ridiculously high so no one will buy it" wouldn't work, either, though, because that would mean I'd have to pay more taxes than I could possibly afford. My copyrights are mine, and the government has no right to create a situation where I have to choose between being forced to sell those rights to someone else, forfeit them, or go bankrupt in taxes to keep m
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That's insane. We should be limiting corporate copyrights, not guaranteeing that only corporations are rich enough to hold copyrights. That's the exact opposite of the sort of copyright reform that makes sense. Allowing corporations to force us to give up our copyrights for a fixed price is not reasonable and would never hold up to constitutional scrutiny, as it would allow one entity to deprive another entity of property. A store owner can refuse to sell a stick of chewing gum to a kid just because he
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And those who depend on income from those creations, therefore, should be condemned to a life of indentured servitude. How very Mozart. I'm guessing you've never spent five years writing a novel in your spare time if you think a mere 7 years of protection on that is reasonable. It isn't.
It's not at all uncommon for an author to become popular off of his/her third or fourth novel, then make not-insignificant amounts of money off of republications of his/her earlier works that often didn't even break eve
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I don't know about where you live but in my state of WV it already is. It is called personal property tax. Cars, luxury items, even pet dogs are taxed. Don't pay your PP Tax and don't expect to get your license or registration renewed until you do.
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http://www.hardysheriff.com/Personal_Property.htm [hardysheriff.com]
No, I don't live in Hardy County but this is identical throughout the state.
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It's always tough to say what is reasonable after the fact, especially as compensation can be structured in many different ways: per copy, flat fee, sliding scale, share of profits. What is fair to impose after the fact isn't always the same as what
Just making it easier for big corps... (Score:5, Insightful)
More to read here. [awn.com]
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Re:Just making it easier for big corps... (Score:4, Interesting)
More than that, the penalties should be nonexistent provided that the person making it available does not make a profit doing so. Otherwise, it should be a flat rate statutory amount depending on the nature of the work.
Particularly with music publishers, depending on the publisher, it can be a pain to (legally) perform out-of-print works if you don't have enough copies and can't buy more. I think that I should automatically have the right to make as many copies as needed to perform any out-of-print work under the condition that I agree to destroy the additional copies and purchase real copies if/when I find out that the work is in print again. It shouldn't be the end user's problem that the company is too lazy to do print-on-demand.... :-)
Re:Just making it easier for big corps... (Score:4, Interesting)
It seems that everyone favors liberalization of copyright laws only if it helps out the "little guy." Copyright needs to be a balance, allowing both large media holders and individual content creators to play fairly under the same set of rules. This bill would help achieve that.
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Even if you live in Sweden? Just think about it for 3 seconds, what if ALL countries did this? Should you have to register in all of them? America != the world.
Register when you publish vs. when you sue (Score:2)
Just think about it for 3 seconds, what if ALL countries [required registration of copyright]? Should you have to register in all of them?
Register in each market's copyright office when you publish or exhibit a work in that market. For example, the EU might maintain a copyright office for all EU members to use, and Canada and Mexico might rely on a fellow NAFTA member's U.S. Copyright Office. Register in other markets when you enforce copyright in those markets, using the existing registrations in other markets to establish standing.
Re:Just making it easier for big corps... (Score:4, Insightful)
To expand on one of the why's for those that may question this, Corporations will have a department or at least a set of dedicated employees who do nothing but verify and respond to contested copyrights that they own. Individuals or small businesses may not be able to afford the manpower needed to manage such overhead. This means that corporations can keep a tight leash on their IP, while making use of material where the creator is identified as "not likely to keep up". Effectively, this increases the base "cost" of maintaining a stable of copyrights so that the riffraff will be right out (5mil$ at the door please).
This is but one of the things such legislation is likely to be used for, and i'm sure others out there can point out more.
Re:Just making it easier for big corps... (Score:4, Interesting)
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If MS overtly publishes a derivative of an 'orphaned' GPL work, they will find it particularly difficult to sue anyone for copying it. Moreover, you don't really need their source code - given they'll not be able to sell copies, they'll only be able to sell the source (which they will also be unable to prosecute anyone for copying).
Copyleft is actually completely unaffected by whether copyright becomes stronger, weaker, or more expens
Copyright assignment (Score:2)
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LAWYER: Well your honour we made a good faith effort to find the copyright holder, but as we couldn't contact the holder we released an exact copy of all their work in a box set for $59.99 as it was no longer covered by copyright.
JUDGE: What efforts did you undertake?
LAWYER: Well, *cough* we looked for the most obscure and most likely to be out of date address and mailed in alleged copyright owner in the plainest and blandest envelope we could possibly find with a covering
Then why are Creative Commons and Public Knowledge (Score:2)
Both versions have protections for creators (in particular the House version, which might even go a bit overboard). At any rate, all the FUD being spread about the bill is disturbing (like requiring registration by creators, which is simply not true, or that it was written by big media, which is also not true).
Unacceptable (Score:1)
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A copyright term of infinity+ years isn't "limited".
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Send in the clowns
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if ( about2expire(mickey_mouse) ) {
copyright_term++;
}
// Once Micky Mouse ceases to be profitable, we will have established what the limit is.
// I expect it may wind up being something like a thousand years.
Why limit penalties? (Score:5, Insightful)
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RI** ?? MP** ??
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The biggest problem with this sort of legislation is that the attorney fees are a part of what makes this kind of suit so expensive for the losing side. If the
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what we need is more rewards for producing the more artistically challenging works. The ones that require real risk and sacrifice to create.
If the product requires real risk and sacrifice to create, copyright registration should only be a very minor obstacle.
We might even see a few low cost 'registrars' whom the creator can just send an electronic copy of the work and for, say $30, will take care of all the work. We might even see places willing to do the filing pro-bono, in exchange for a nice cut of any awards fees from violations down the line. Just one win against Disney could pay for tens of thousands of filings.
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The work is still under copyright and the children of the now deceased copyright holder can still make claims on the work.
Making it public domain opens up a whole new can of worms.
Re:Why limit penalties? (Score:5, Insightful)
Just the opposite! (Score:2)
I haven't read the bills, but your idea is like a Louis Black joke,"Hey Congress has got a really sh***y idea, let's make it even worse!". If the bill doesn't allow for the age of a copyrighted material to be considered, then anyone who writes anything on the internet or self-publishes, could see all of their copyrights disappear in days from publishing. Whereas things that are old (say 1
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Not all copyrights are registered and there's no sure way to tell if a work is truly abandoned or if you you just haven't found the holder.
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But, my optimistic int
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Because it may turn out to be a foreign copyright holder? What then for all those international treaties the USA is always boosting?
The USA seems like an unlikely country to be promoting copyright reform.
Too much of a burden (Score:2)
That said, I expect that it is not too difficult to close this spamming loop
Perhaps this could apply to abandonware (Score:2)
limit for making a compensation claim
Orphaned work you say ? (Score:2)
Does that mean, "when the members can't decide which of them will get the propriety of that piece of work" ?
Re:Orphaned work you say ? (Score:5, Insightful)
No. This means that when the members of the RIAA/MPAA/BSA want to use someone else's work, they only have to show that they "couldn't identify" the copyright holder, and so can use work while paying only a token penalty. Basically, now a small copyright holder has to undertake the same sort of monitoring as a large record studio. Otherwise they risk having their work appropriated by larger corporation.
Not true. (Score:2)
Under both bills, if a copyright holder identifies their work being used, the user of the orphan work has to compensate them.
Furthermore, the proposed definitions of what constitutes a "reasonable" search are pretty heinous. It seems like they were expecting this "big corporations" scenario rather than the people who legitimately need to use orphan works.
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a time limit (Score:1)
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hmmm (Score:1)
tag: whatcouldpossiblygowrong ?
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Fraud is still a crime (Score:2)
The flaw is internet anonymization. (Score:5, Insightful)
When you think about it this has mostly just been produced as a bandaid to allow things like archiving to occur in the absence of a strong public domain and working fair use.
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If this becomes law, Napster will reappear. Every time someone offers a song, the new napster will not know who owns the copyright. So they will send it off to the copyright office to be identified. After the first few billion, the copyright office will be so far behind that effectively nothing will ever get processed and now all the record companies
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Nice thought, but that's not how it will work.
TFA says that private outfits of some kind will have certified databases to identify works, and you send your stuff to them for identification along with an as-yet unspecified fee. So the New Napster would require tens of billions of dollars to send out for identification fees for those billions of songs....
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A great deal of the discussion that has taken place in the 'net is FUD, spread initially by certain individuals in an illustrator's group. Those particular discussions, in fact, took place BEFORE the text of the bills was released to the public, and pretty much panicked the readers.
At any rate, if the person's work is identified, that person will be compensated.
Personally ... (Score:2)
I think that We the People are long overdue to consider reform on Congress itself. After all
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It's even worse in the Senate than the House. Some members of the Senate have served for over 30 years.
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Actually it's gerrymandering [wikipedia.org] that's the real problem. Term limits don't mean jack when a district is a one-party district. The district where I grew up (OH-05) hasn't elected a Democratic congressman since the Great Depression.
Well, Senators are re-elected 1/3 as much as representatives, so getting re-elected twice nets an 18-year career.
Day Late & a Dollar Short (Score:2, Informative)
This reform should have been done years ago, but this still doesn't go far enough.
I suppose it's meaningful that some folks in Congress are just now beginning to see that copyright is a very important issue in the information age.
Now, if they would just undo the copyright laws they've passed since 1995, that would be a good start. And then they can undo some more, until the copyright period is reasonable - somewhere between 10 and 30 years. Once they get THAT done, THEN they can address trickier issue
Get rid of registration, first (Score:2)
And then if I ever decide to sue Disney or whomever because they used something of
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Flip side though, our trademarks and patents have exponentially increasing rates. A trademark costs $112 to register, but $281 every 10 years to renew. Patents are even more vicious: 4th year renewal is $191. 7th year renewal is $382. 10th year renewal is $607. 13th (and final) year renewal is $1125.
Though for some reason, we can register the physical appearance of an object (e.g. we can't
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I couldn't bring myself to read more than half of this, as the author seems grossly misinformed on Copyright, but the bit about paying money to private registries sounds a bit worrying. Does anyone know more about this?
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Copyright.gov:
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright l
EVEN BETTER... (Score:2)
The good faith effort (Score:3, Insightful)
I know that forty years sounds like eternity to the eternally adolescent Geek - but your treasure trove will almost certainly turn out to be an instantly recognizable icon of commercial art and illustration.
The page clipped from Life magazine, the poster that was taped to a dorm room wall.
What looks like a "good faith effort" to you may may look pathetically inadequate and self-serving to a judge. It is altogether too easy not to find what you don't want to find.
Right Problem, Wrong Solution (Score:1, Informative)
These bills would create privately owned and operated copyright registration databases. How much will it cost me to register my copyrights? As a photographer, I create thousands of copyrighted works every year. Even if the price is less than $1.00 per work, I can't afford it. Once a
Anyone see who introduced this bill? (Score:2)
I'm not from the US... (Score:2)
Perhaps I missed something, but... GPL? (Score:2)
The GPL License is based largely on copyright. You violate the license, you enter the domain of copyright. You violate copyright, you can be su
WTF (Score:2)
Far More Than Overdue (Score:2)
And the US expects international cooperation? (Score:2)
Oh. HELL. No. (Score:2)
If I had to put a copyright claim out for every single piece of work I had, it would quickly engulf any profits I had made on those works. Hell, DeviantArt alone has over 56 MILLION images in its repositories - are we supposed to believe that everyone is going to rush out and get those images copyrighted immediately?
If you're looking to crush small businesses, this is the way to do it.
(Hell, the art communities threw their arms up in the a
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The bill in no way requires you or anyone else to register your works any more than existing copyright law does.
To reply bluntly, this is how the Internet pisses me off.
right idea, wrong implementation (Score:2)
Congress should simply require copyright registration for all works every 10 years, for $1/registration, with submission of an electronic copy (or approximation thereof when that's not feasible). Once you don't renew, your work falls in the public domain. The list of all currently registered works should be published.
It's simple, reduces bureaucracy, is self-funding, and it creates legal certain
Why create more lawsuit fodder? (Score:2)
GPL (Score:2)
If I read this right, some big company could say they couldn't find me, put up some notice with the copyright office that I likely wouldn't notice, and then later take the software I wrote and put it in a proprietary app against my will by giving me some low cash payment.
Now my particular software wasn't great shakes, but isn't
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Did you read the text of the legislation? First, it doesn't require registration by creators any more than existing copyright law does. Second, if a person is identified as the copyright holder, that person is compensated and/or the user faces the full penalties of copyright law (particularly if they acted in bad faith).
The "token sum" you're speaking of is "reasonable c