Copyright maximalists even want to eat orphans

I attended the PICTFOR meeting on Tuesday, having prepared for it by researching the state of politics in relation to “Orphan Works”. I have been pointed at this issue by Dr James Boyle in his Orgcon 2010 speech and more recently by this paper, called “Orphan Works: Mapping the Possible Solution Spaces” by David Hansen.

The fact of “strict liability”, the long periods of copyright, and the backdating of the extended life time of copyright have led to large parts of our culture being copyrighted, without an owner. There is no-one to ask permission for use. I can see no reason why these works should not be reclaimed by the public domain but it seems that other creators want to deny the use of orphaned works to increase scarcity.

David Hansen looks at the current or more accurately recent legislative responses in the US and the EU.

In summary, the Americans have considered reducing the liability if users make a search for the owner, and behave reasonably if owners come forward after use. Also in the US, they have considered extending Fair Use rights based on the purpose of use. In the EU, they are considering the endowment of rights to use orphaned works to certain classes of, usually pubic, bodies, and most outrageously, lawmakers are considering allowing collective rights organisations to collect for the use of orphaned works and to distribute these earning amongst their members (or customers for private organisations).

Hansen’s paper quotes Lessig’s evidence to the US Congress in 2006, where he argues that the age of a copyrighted work should be significant, not the least distinguishing between material created before 1978, and after. I hope this is about the development of the international agreements on copyright longevity. However, he also recommends that the ‘strict’ protection of copyright be restricted to 14 years. i.e. no works younger than 14 years can be considered ‘orphan’, and that works older can be considered. Anyway, Lessig argues that, the right of copyright must create a duty to maintain as does other property; the rule against formalities does not restrict national registries nor a duty to declare copyright, in the jurisdiction of the creator/act of creation. He uses these constructs to create a definition of orphan works and a framework in which remedies can be limited. i.e. aged and or unmaintained content.

 I looked into orphan works because I thought there might be a compromise, that development of legislative policy to enahnce our access to culture and news would be easier, but it seems it comes back to longevity of copyright.

No-one has the right to earn money by doing nothing! No-one has the right to deny society its culture because they want to extort money from us.

It seems that small scale creators, such as the photographers organised in stop43 and industrial content are still pursuing a maximalist lobbying strategy, seeking to deny citizens the right to access orphaned content even when acting in good faith, collectively or individually.They also tt seems they seek to deny even the collective libraries of record (Library of Congress, British Library), the rights to use and organise orphan works.

<p”> <p”>Once again Monopolists restrict supply, in order to increase price.

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