Christian Engström, Pirat

16 november 2009

Orphan works hearing in JURI

Filed under: Copyright Reform,English,informationspolitik,Orphan Works — Christian Engström @ 18:10
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Europeana

Last Tuesday, there was a very interesting workshop on orphan works in the EU legal affairs committee JURI.

An orphan work is a work that is still in copyright, but where the rights owner is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.

Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.

But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.

This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.

Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.

And Google Books is not the only project to digitize works and make them available, even if it is the one that has attracted the most attention lately. There is an EU project called Europeana with a similar goal, as well as the open initiative Project Gutenberg. All of these are being held back by the problem of orphan (or semi-orphan) works.

Unless we do something, most of our common cultural heritage from the 20th century risks getting lost in a black hole before it becomes legal to save it for posterity. The Commission wants to address this problem, and solve it as quickly as possible. This a very good thing, and an initiative that we should support.

The workshop in JURI started with some introductory remarks by JURI chairman Klaus-Heiner Lehne (Christian Democrats, DE) and Swedish state secretary Magnus Graner, who was in Brussels for the event.

The next speaker was Tilman Lüder, who is head of the unit for Copyright and Knowledge-based Economy at the Commission. He gave a very thorough briefing on the subject.

There are essentially three possible solutions to the problem:

  1. Do nothing, and accept that most works that are younger than about 150 years cannot be digitized,
  2. Introduce a statutory exception on the European level, to permit the use of orphan works, or
  3. Introduce a system based on collective licensing.

If we rule out option 1 as being unacceptable, the choice stands between a statutory exception and collective licensing.

Collective licensing means that you legislate to the effect that for works where the rights holder cannot be found, management of the copyright is taken over by a collecting society, who will then be able to negotiate on behalf of the (real) rights holder, and collect money that will be given to the rights holder if he should turn up at a later date.

In a completely unsurprising manner, this is the solution favored by the collecting societies. Since, after all, most of the rights holders will never appear, the collection society can look forward to quite a lot of money that will never be claimed by anybody.

Even though the collecting societies explicitly do not have any rights to the works (which are, after all, orphan), they still want to be able to collect money from anybody who is interested in making these works available as part of our common cultural heritage.

At the workshop, this position was represented by Tarja Koskinen-Olsson, from the International Federation of Reproduction Rights Organisations (IFFRO). This is an umbrella organization for collecting societies in various countries.

A statutory exception means that you legislate to make the orphan works available directly, according to rules that are specified in the exception. This is the solution that the public libraries and their organizations prefer. At the workshop, this view was represented by (among others) Elisabeth Niggemann, representative of Europeana and director general of the German National Library.

In order to be effective, the exception would have to be introduced at the European level, so that works that have been digitized in one member state may be made available in other countries as well. If the exceptions were to be on the national level, this would not be enough to create a single European digital market and make European culture available to us all. But a European level statutory exception could untie the knot.

Regardless of whether the solution that is ultimately chosen is based on collective licensing or statutory exceptions, there is a need to create a searchable register of copyrighted material, so that it becomes possible to determine the status of a work, and find the rights holders if they are known.

There is an initiative called ARROW, which stands for Accessible Registries of Rights Information and Orphan Works. The idea behind this register is to document works that have been established to have orphan status, after a diligent search for the rights holders has been made without success.

The problem with this approach is that it normally is quite a burdensome task to carry out this diligent search for each work. Many older works (perhaps the majority) simply do not have enough commercial value to justify such a search, even if they still have cultural value to at least some people, who would be interested if they were made available.

A much better solution would be to have a register where rights holders can register the works that they have an interest in upholding their copyright on.

The statutory exception would then specify that for works that were published more than, say, 10 years ago, the rights holder must register the work if he wants to continue collecting royalties on it. Otherwise, the work will be considered to be free to use for anybody.

If the rights holder for a work that is older than 10 years later turns up he would be allowed to register his rights, but he would not have the right to demand compensation for use of the work during the time when it was not registered. This rule is necessary to provide legal certainty.

Since I am a member of the JURI committee, I was allowed to give my comments during the workshop, and I expressed my support for a statutory exception along these lines. Except for the representative from the collecting societies, I got the impression that most of the other parties involved would be happy with a solution like this.

For companies and individuals that hold the rights to commercially valuable older works, it is a very small burden to register the work and provide a public record of whom to contact to negotiate for licenses. And for the millions of works from the 20th century where the rights owners no longer have an interest, at least not commercially, they will automatically become available for digitization and other use as part of our common cultural heritage.

In my mind, this would represent a true win-win solution that can be implemented very easily and fairly quickly by an EU initiative. This is an issue that needs to be resolved to bring Europe into the information age in a sensible way.

Let’s go for it.

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28 kommentarer

  1. Just a minor refinement regarding the registration of copyrighted work. If you choose this method you must give the rights holders some time to register their works before the directive is enforced, but I guess that it might have been to obvious to mention.

    Kommentar av Stocken — 16 november 2009 @ 18:39

  2. Instead of actively searching for the rights holder, there could be a finders fee as a per centage of the accumulated royalties.

    Kommentar av Robert Andersson — 16 november 2009 @ 19:06

  3. In the case of photos and digital paintings, does everyone need to register? Or is it enough to have an active email-address or other means of contact on the page where the work is published? Do you need to mark every image with the date you made it public?

    Also, with the tendency of people to upload things to flickr that they don’t own the rights to under a CC-license, can that be solved with a watermark policy?

    Here we have one of the good things with the Telecoms package, right? That you are supposed to have the right to keep an e-mail address even if you change provider?

    There are a lot of special cases, like on Deviant art there are many accounts with free stock nudes made for photomanipulation art that the owners of the accounts want some say in how the image is used, the images featuring themselves nude, mainly to avoid being edited into pornographic situations that they don’t feel comfortable having images of themselves in. Which is a very reasonable term of usage in my book.

    Kommentar av David — 16 november 2009 @ 19:21

  4. It is interesting that this issue exists because of the excessive copyright protection time. It also proves that such protection times make absolutely no sense.

    Let’s solve this and other problems that copyright has introduced by reforming copyright.

    For the real and intended motivation of copyright, a protection time of one (1) year could serve as an upper limit of what is defendable and acceptable.

    That’s another fight that can be fought in tandem with this, to kill two birds with one stone.

    Kommentar av Jakob — 16 november 2009 @ 20:47

  5. Interesting…

    Does this mean that if I want to use GPLed code in my proprietary product, I can, if the code is more than ten years old and I cannot find the author?

    For GPLed code, who will stand as the author? All contributors (I hope).

    What if it (later) turns out that the author isn’t European but from the USA? I wouldn’t know if I found the work on the internet and couldn’t find the author. I guess the USA will not recognize these exemptions…

    Can I make products using these exemptions and sell in the USA?

    Kommentar av Pesc — 16 november 2009 @ 21:59

  6. A common solution when it comes to abandoned property is that you are required to advertise for the legal rights holder. If nobody shows up within a stipulated period, you are free to take over the property. This could be used in conjunction with a copyright register.

    As an author, you would not be required to scan advertisements if you registered your works. As a user, you would need to scan one register and advertise in another in order to be able to use an orphaned work.

    I would be extremely unhappy about the collection agency solution. These organisations are already way too strong and aggressive.

    Kommentar av Gurra — 16 november 2009 @ 22:53

  7. Well, this is enlightening.

    Just these few comments show how diverse the ideas about copyright is and how bad the concept of automated perpetual copyright is for our society.

    As it is now its a disaster thats is mostly abused by economic interests.

    1. : I can’t imagine that the registry would be a blanket ”if its not in here its abandoned even if the original author is still selling it” situation.
    Here I think the Trademark rule of ”use it or loose it” would be a good thing. The original intent of copyright was never that it be used to ”Lock up” works.

    3. : This is the big can of worms and is what will cause most arguments. Already copyright is a much to blunt tool to be effective in this situation.

    5. : And here comes ”Lets make this in to a blunt bludgeon”, seriously It’s much better to take small well aimed steps instead of trying to make the gigantic fix.

    Kommentar av Technoid — 16 november 2009 @ 23:34

  8. It’s good that there is a discussion in the Parliament about these aspects of copyright. It’s very encouraging indeed.

    There is, though, this question about international agreements. Did the workshop cover those aspects?

    Kommentar av Johan Tjäder — 17 november 2009 @ 1:09

  9. […] är det trevligt och läsa Christian Engströms blogginlägg där han tar upp JURI möte om orphaned works – föräldralösa verk. En lösningsförslag är att […]

    Pingback av Anders S Lindbäck om kunskapssamhället · Vem bryr sig om föräldralösa verk ? — 17 november 2009 @ 1:30

  10. I dislike the collection soceiety solution, it sounds like the collection society will set the price ridiculously high. All in interest of the rights holder once it shows up (I say ”it” since it is likely that the owner is a corporation).

    There is one step in the registration suggestion I do not understand. How would having a database of registered works help me to find out if, say a photo, is copyrighted?
    It is not feasible to look up if a image detail exists in a large database of images. Same problem exists for song snippets etc.

    /Werner

    Kommentar av Werner — 17 november 2009 @ 2:03

  11. I’m intuitively opposed to anything involving registration as a condition of copyright. I’m not quite sure why, but I can think of a few alternative reasons:

    1. Registration (including legal deposit with the LoC) was a requirement for copyright in the USA until the late 1970’s. Then the USA adopted a new copyright act in preparation for joining the Berne union (Berne requires copyright without formalities). In my opinion, such a system benefits professional authors over spurious writers, who may not even find out that someone is making money on their old school essays or whatever. I think this partly explains the American notion of copyright as purely a business matter, with little or no regard for moral rights.

    2. Any system involving registration of pretty much anything written will cost money to maintain, especially if it involves legal deposit (storing a copy of the work in some national library). It may be a small burden on each author to register, but the person who maintains the registry will not work without getting paid. The taxpayers may accept paying the bill if they find the registry useful, but imagine spammers abusing the registry to place one-line ads for various pills and money laundering schemes. It already happened to Google. Will taxpayers be willing to fund that?

    3. Registration rules on top of what we have today make an already complex system even more complex. Given the numerous options, an author (or anybody else) will have trouble predicting what will happen to his rights in the future, quite apart from the existing issue of market reception.

    However, I’m even more opposed to anonymous collecting societies having it their way, so I’m willing to consider also registration in order to keep the collecting societies away.

    I’m not entirely convinced that the ”do nothing” approach, with respect to orphan works, is a bad idea. Ridiculous lawsuits over large sums of money are not an inevitable consequence of copyright as such, but the result of a combination of poor laws, human greed and public outrage against ”crime” of whatever kind. We cannot abolish human greed, but we can change any part of the law as we like, and we may even influence popular opinion on what is to be considered criminal. Rather than making it less dangerous to publish orphan works, I’d like to make it less dangerous to publish any works. The author (or copyright holder) may have some other reason than the prospect of earning money, say the concealment of facts, to prevent somebody else from reprinting an old book. Why should the guy without an entry in the phone directory be put at a disadvantage when it comes to copyright?

    My preferred solution is to decriminalize copyright infringement entirely. Any dispute over the unauthorized publication of someone’s book should be left as a matter of private law, allowing reasonable damages but not fines or jailtime. What’s reasonable in terms of damages depends on the circumstances, such as whether the copyright holder had been preparing to sell a new edition. If you can’t be identified or contacted, you are probably unlikely to earn anything on your copyright anyway, which means that damages would be essentially zero for orphan works. ”Punitive damages” are a criminal matter; they have no place in private law.

    Whenever possible, laws should be made simpler, not more complex, especially when the net result is the same.

    Kommentar av Anders Andersson — 17 november 2009 @ 3:23

  12. Why wasn’t there a point
    4. To reform copyright laws completely because they are absurd and leads to that all works, orphant and non-orphant, that are younger than about 150 years cannot be digitized without enormous costs.

    Kommentar av Anders — 17 november 2009 @ 6:55

  13. HAve to agree with poster number 13.

    This system is treating the symptom instead of the desease.

    The solution is to lower the copyright time to a more suitable time (15-20 years)
    That way the problem of orphan works solves itself.

    Kommentar av christoffer — 17 november 2009 @ 10:35

  14. @Anders Andersson (#12):

    The database would only keep records of those works for which the protection time has been extended. That would limit the work necessary. It is also necessary to consider that authors may have to contribute to the cost of maintaining the database.

    But I also find that most governments maintains libraries and archives which essentially are such databases already, for example the Royal National Library of Sweden.

    Nevertheless, the current system has proven to work sufficiently good to protect works from illegal use in the commercial scale so I see no reason not to keep it. However, the protection time needs to be cut significantly to prevent orphan works. Non-commercial file sharing should be made a fair use exception. And also some criteria should be established for shortening protection times for works already published, unless you simply reduce the protection time after the fact. One such test would be to see if the work is commercially available.

    Kommentar av Johan Tjäder — 17 november 2009 @ 13:01

  15. Jakob, ”It is interesting that this issue exists because of the excessive copyright protection time.”

    The problem with orphan works pretty much exists because the copyright organizations and collection societies never lived up to their end of the bargain.

    One of the arguments they used against the governments, back when people had to register their works, was that the govs did so poorly keeping track of who’s who and who did what.

    So in part collection societies became collection societies because they were supposed to be more responsible and do a better job than any government agency. But, of course, they either failed miserably or the goal was something else.

    Kommentar av ST — 17 november 2009 @ 15:17

  16. Of those three choices, number two would probably be the best one. Number three could be more financially lucrative, especially in the digital age, but then again it’s the collection societies, who speaks for every one but represents only a few, that set the rules, and then so eagerly takes care of all the orphaned money, that have a habit of staying orphaned as well.

    Kommentar av ST — 17 november 2009 @ 15:52

  17. Urban: PUL-leeze.

    Kommentar av Rick — 17 november 2009 @ 21:54

  18. Berne convention is the biggest problem of copyright law. It’s horribly outdated and simply has to go.

    I was contemplating the idea of copyright registry for some time and the government part could really be just a cluster of computers running the database. Everything else could be done by private registrars just like Internet domain registration (as proposed by Lawrence Lessig in Free Culture). Registrars would handle all formalities and pay a fee of say 1000€ per registered work to government for database upkeep and copyright enforcement expenses. The fee could either be paid directly by registrant or through registrar services, e.g. eshop that sells registered works.

    Query for name and author of song or picture from unknown data is also possible, the technology is used by various services like YouTube as part of a deal with big media.

    Kommentar av next_ghost — 18 november 2009 @ 0:36

  19. With an addition to Creative Commons, perhaps even a new class to markup these works, they would be easy to identify. I also favour the system of the CC because it has plenty of possibilities for a creator of a work to decide how it can be used. I for instance release all my own illustrations under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported license. Anyone else interested in making money off my designs can contact me.

    I think the last option presented would be for the better. Having an anonymous agency collecting the money for the off-chance of a rights holder to turn up is just silly. Brilliant company idea because it would really be money for nothing. Just in the first year alone it would become a multi-billion Euro industry. Quite literally – f**k that. It would be stealing money and really taking advantage of the situation. The same mentality as never paying for a train ticket – if you ride for free for a year but then get caught the fine for that one time is less than the accumulated profit, so really has no effect.

    No make the works free, and for rights holders to register the works that they have interest in.

    Just my two bits.

    Kommentar av neocreo — 18 november 2009 @ 9:36

  20. @Johan (#15) and next_ghost (#19):

    A registry for works with an extended term of protection and a registry for pretty much everything that has been published are two very different things.

    We do have national bibliographies already, the one in Sweden based on the Royal Library holdings which have essentially been accumulated through legal deposit. However, while a national bibliography is certainly helpful in identifying the author of a work, it provides very little beyond that in terms of locating the current copyright holder. Authors and copyright holders are entitled to some privacy, too. Therefore these bibliographies do not provide a solution to the problem of orphan works. Besides, they are mainly used for works published in print or other physical manifestations; ephemeral ”publication” in broadcast media or on the Internet is more difficult to deal with.

    A registry dedicated to the small number of works awarded an extended term of protection would be a fairly straightforward thing to create, once the extended term has been instituted. Funding it won’t be much of a problem, since the extension is offered for purely commercial reasons. Instead of letting bestsellers lapse into the public domain, the publishers get an easy way of maintaining their monopoly.

    But what do we get in return? Why should certain popular works be exempt from the time limit that applies to the protection given to everything else? Copyright protection is offered to the author in advance of publication, in order to serve as an incentive to create something the public will enjoy. Most works created do not end up as bestsellers, but the protection remains – a promise is a promise. Offering extended copyright protection after publication merely serves as an incentive to earn more money, and I don’t see how that benefits society as a whole. – ”If you pay me a fee, I’ll wield my power as a legislator to send customers your way and your competitors to jail.” – Kings have been awarding business monopolies to loyal subjects for millennia, and now that we have a system of automatic monopoly to anybody writing anything, arguments are made in favour of reestablishing the elite of yesteryear?

    Future laws should not primarily be written to deal with a problem created by past or current laws, but to deal with our future society. Then you may add some transition rules to deal with works created under the old laws as long as necessary to keep the remaining copyright holders happy, but just for a limited time. Please don’t design the entire law around these transition rules – that’s what the lobbyists do when they have the politicians extend the term of protection for audio recordings already made and published more than 50 years ago.

    Kommentar av Anders Andersson — 19 november 2009 @ 1:48

  21. @ Anders Andersson (#21):

    You’re talking about different kind of extension than I do. You’re talking about copyright term extension. I’m talking about copyright scope extension.

    The basic principle of new copyright law should be that if anyone is making money off your creation, you’re entitled to a share of profit. To be more specific, any commercial usage without prior license from author is prohibited. And that’s it. Unless the work is listed in copyright registry, you’re free to share as long as you have no direct or indirect financial profit.

    The copyright registry really is just a tool for shutting up those who still believe that people won’t pay for art unless they’re forced to by law. Once artists find out that it doesn’t make any difference in their income whether or not they pay 1000€ per work to the government, all we’ll have to do to make sharing completely legal is shutting down the registry.

    Kommentar av next_ghost — 19 november 2009 @ 18:52

  22. @next_ghost (#22):

    I’m actually referring to the statutory exception for orphan works mentioned above by Christian, where the monopoly on reproduction and distribution by default would expire ten years after first publication (Christian’s suggestion), but where the copyright holder would have the option of registering the work for an extended term of protection. Under such a regime, a majority of works would in effect be covered by copyright for ten years only, while a small number of bestsellers may be covered for an additional term of unspecified length.

    The extended term I’m talking about is that term beyond the default (regardless of whether the default term is ten years, 14 years, 28 years or whatever). It’s part of Christian’s proposal, which started this thread.

    I’m not sure how your proposal differs from Christian’s, but if your idea is to limit copyright to registered works only, doing away also with the ten-year default term of protection, then your proposal may still be viewed as a variation of Christian’s, replacing ”ten years” with ”zero years” (what kind of protection is provided by default then becomes an academic question, since nobody can ever benefit from ”protection” that lasts for no time at all).

    I don’t see how your proposal constitutes a copyright scope extension. An extension in comparison to what; our current system or no copyright system at all? In any case, I think my objections against extending the term of protection from ten years to something longer for certain works apply just as well (or even better) to offering any copyright protection only to those works in the first place. I’m not opposed to the idea of legal protection as such, but to the idea of offering that protection only to those who ask and pay for it, whether it’s an extension of a default term or the only protection available at all.

    You seem to say that the registry (and the extra legal protection given to registered works) is merely a tactical measure to make copyright holders understand they aren’t gaining anything from it. I consider this proposal flawed for a number of reasons:

    1. Your registry isn’t a mere symbolic gesture; you are actually giving the copyright holders (those who register their works) legal rights beyond what authors in general get. If the copyright holders can earn money on it, they will use it to their advantage, and to the disadvantage of everyone else. Your registry will hurt real, living people at least as much as the current copyright system does.

    2. You are in effect saying ”let’s abolish copyright, except for those who insist on keeping it”. That’s a move away from legal equality towards legal inequality; you take rights from those who don’t care to defend them and give to those who do. This is a way of creating another aristocracy, like the nobility of the past.

    3. Individuals don’t learn from collective experience. Even if you can show by authoritative statistics that on average, non-registered authors earn as much as (or even more than) registered ones, individual registered authors will not consider themselves ”average” and admit that they made a poor choice in registering, but they will attribute their poor earnings to violations of their monopoly rights. Even if most people are rational, some aren’t, and the members of precisely that irrational minority are likely to keep registering their works and demand that their rights be respected. It’s no coincidence that bestselling authors are more opposed to file sharing than the population in general is. We already have statistics showing that file sharers spend more money on music; is the RIAA even taking notice? The industry has ignored statistics for 100 years!

    4. The legal system should not be used for social experiments or to teach some group a lesson. When creating laws, you should only enact a law you believe will serve a purpose as it is written, not enact laws that will accomplish nothing while hoping that others will learn from your negative experience. Temporary laws are ok to deal with temporary situations, but human greed and stupidity are not temporary illnesses.

    5. Current copyright law deals with rights that last for decades or even centuries. You cannot ”try” switching to a different system to see the effects already after five years, but it will probably take another 100 years before legal scholars can determine whether a particular change has been helpful in preserving the orphan culture of the 20th century. When crafting new laws, we can only rely on experience with similar systems in the past and theoretical speculation. Unless you plan for your registry to last a hundred years or more, don’t count on our future legal society to even remember it, let alone learn from the experience. In some places the patent system was abolished already in the 19th century because it was deemed ineffective. Yet we have an almost universal patent system today; where did it come from..?

    Having good intentions when writing new laws is not enough. The old laws we scoff at today were probably created with the best of intentions too; unfortunately they had effects which our ancestors were unable to predict. If we are to accomplish anything, we have to study the past and see why things went wrong, not merely encode those same intentions in new laws using a different language and assume nobody will abuse the system ever again. The law is like a planned garden, with elaborate flower arrangements and nicely curved pathways for walking. Vistors will however cross the lawn to take the shortest route to their destination.

    Kommentar av Anders Andersson — 20 november 2009 @ 20:34

  23. @Anders Andersson (#23):

    I think you’ve missed the part about commercial protection applying to all works just like now. That is the basic scope of copyright everyone is entitled to automatically. Registration extends the scope of protection to all kinds of distribution.

    As for the rest of your comments:
    1. The basis for my idea is Czech copyright law in which copyright is untransferable. The copyright holder is either the author himself or his rightful heir. No exceptions.

    2. As you’ve already read above, I don’t want to abolish copyright. I just want to restore its original meaning. At the time the original Berne convention was written, making copies was equal to commercial publishing. No legislator has ever given copyright holders any control over non-commercial use of copyrighted works. Current belief that such control exists is a result of new technology interacting with poorly worded copyright treaty written over a hundred years ago.

    3. They can ignore statistics for another 100 years if they wish so. The thing is that under new copyright law, the market will start ignoring them in return. Right now, our culture is divided into 3 main categories – the public domain, which is 100+ years old and almost exclusively available only in hardcopy form, orphan works, which are not legally available but cover over 90% of works from the past century, and popular culture, which almost exclusively belongs to big media. It’s the general unavailability of other works that keeps big media in business even though they have no respect to consumer rights whatsoever. Restoring the original meaning of copyright law will bring competition back to the content industry by releasing orphan works from pointless lockdown and expanding the public domain significantly.

    4. It’s not a social experiment. It’s merely a temporary trade-off. Pushing changes that completely restore the original meaning of copyright around big media lobbyists is impossible. This is something that might be acceptable to them eventually if you start pushing far enough on the extremist anti-copyright side.

    5. Similar registry system worked in England since 1710 to 1988 and in the USA since 1790 to 1976. In both cases, it existed almost twice longer than Berne convention does as of today. This idea is no trial-and-error.

    Kommentar av next_ghost — 20 november 2009 @ 23:36

  24. Solution 2 is obviously the nicest one, but I fear that it still will be rather risky in practice to make use of orphaned works: If you use an orphaned work for some commercial purpose (say, you publish it as a book), and a copyright holder suddenly appears an registers himself, your book publishing activity has suddenly turned criminal. It gets even worse with derivative works: If you create a derivative of an orphaned work, and a rights holder appears, any use of your work will be criminal.

    This is of course a lot better than today’s situation, where any use of the orphaned work is criminal to start with. But I fear it will be difficult for most people to understand the difference between an orphaned work and a public domain work. With a too wide-spread use of orphaned works, there is a risk that some ”collecting society” could start to track down those who can claim the rights of a work, buy the rights, and then sue those who uses the work. This would be slightly similar to submarine patent trolling.

    Kommentar av Erik Carstensen — 22 november 2009 @ 21:14

  25. @Erik Carstensen (#25):

    The law could be written so that distribution of orphaned works stays legal even after the work has been registered until you get a cease and desist letter from the author.

    Kommentar av next_ghost — 23 november 2009 @ 17:30

  26. @next_ghost (#25):

    The problem with derivative works remains. Will it, for example, be possible to release a derivative work under a free license (like GPL or CC-SA), and in that case, what is the expected outcome of a cease and desist letter?

    I think the only reasonable conclusion is that free derivative works cannot be allowed, which would be sad, especially in areas such as software: It would be allowed to use orphaned works to create proprietary software, but not to create free software.

    Kommentar av Erik Carstensen — 23 november 2009 @ 20:46

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    Kommentar av infallsvinkel — 8 april 2010 @ 17:42


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