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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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May 5, 2005

We Want YOU to Help Protect Orphan Works

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Posted by Wendy Seltzer

Copyright can be enough of a problem when copyright claimants make unreasonable demands, but sometimes, it's even worse when you can't find the copyright holder at all. Documentaries don’t get broadcast; books don't get published; films don't get restored; digital materials don't get archived, all because they use or incorporate works whose owners can’t be traced, so there's no one from whom to seek permission. In many cases, orphan works are lost because no one can authorize their use.

The Copyright Office has opened a Notice of Inquiry on the problem of orphan works, requesting public comment on the scope of the problem and possible solutions. Many people submitted comments, and Kat Hanna and Stanford's Center for Internet & Society are working to get even more evidence into the record on reply. Reply comments are due May 9.

They’ve invited us to highlight comments from round 1 to get your creative juices flowing, so here's one from Daniel Callahan, discussing the problems orphanhood poses for those who want to enjoy or study comic book culture:

The comic book industry is usually perceived as composed of two publishing entities: Marvel and DC Comics. However, there have been many smaller companies over the last six decades who have entered the market and later gone out of business.

As such, surviving copies of the titles they published are rare, and their preservation as works of commercial art is dubious because of existing copyright laws. Marvel and DC may easily publish a 'reprint' volume, but a fan or entrepreneur who would like to scan in or republish comics whose copyright holders cannot be located remains stymied.

A comprehensive preservation project of these works cannot be done unless and until the status of orphan works is determined by your office. Since many of these comics books were not printed on paper designed to survive for decades, there a window of time in which this preservation can be done. If the status quo remains, we will most likely lose many books to decay or neglect.

If this sets you to thinking about ways you or others you know have been affected by the "orphan works" problem, head over to, where we've made it easy to submit a reply comment.

Comments (5) + TrackBacks (0) | Category: Culture


1. Branko Collin on May 6, 2005 9:13 PM writes...

" could not be found"

BTW, I have started jotting down abstracts of the comments at a Project Gutenberg wiki. I have only done 15 so far, but if a couple of people join in, we could make a dent. (15 comments took me about an hour; most comments so far were really short, and few of them propose solutions.)

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2. Branko Collin on May 9, 2005 9:43 AM writes... still dead

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3. Neo on May 10, 2005 9:36 PM writes...

Oh the irony ... what we need is preservation of orphan Web sites! (I think can be useful but it doesn't seem to be all that reliable to me. I've had weird and spurious error messages at times, and stuff found, then not found, then found again at successive times, and other inconsistent and strange things happen there.)

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4. The flip side of orphan works on May 15, 2005 8:41 AM writes...

The problem of orpham works will not be solved if the flip side is also not solved. Put differently, a wholistic approach to copyright is required.

The flip side is the alleged copyrights of works that are in the public domain, but are claimed by known "cartel" organizations who will gladly license for a fee what they do not own or should not own, a scam that is vast.

Just look at a publication of musical scores of 19th century music. They all have copyright notices... the publishers claim that the copyright is for the music as a derivative work, where some changes have been made. On guitar and piano music, for example, the fingering notation may have been added or "improved". In some cases the changes are in the musical notes themselves, a questionable practice if the changes in the notes change the intention of the composer.

When a performer wants to use or record one of these old works, they are confused because they do not know if a license is required because the publication has a copyright notice or if it is not required because the work is in the public domain. In fact, in some cases the licenses are paid for out of fear ob being sued for copyright infringement, the idea of the scam. The copyright law (American) is vague on the subject... actually it is not covered at all, so this is as confusing as it gets.

Why, recently I discovered that the national anthems of almost all latin american countries are licensed by BMI. I believe that what are licensed by BMI are arrangements of works in the public domain, the problem being that when one of these anthems is performed on radio, the radio station may not know whose arrangements was actually performed. The American (Star Spangled Banner)anthen has 180 or so versions registered at BMI, a nice way to inflate a song catalog and to claim rights on the work of a long dead composer so as to generate a dubious cash flow.

Anyway most musical arrangements should not qualify as new copyrightable works, since all recordings are really new versions and arrangements of previously existing music. After all, what singer worth his salt will record an old song the same way and using the same orchestral arrangement as did Frank Sinatra 50 years ago?

While the analogies are for the music industry, the other arts suffer the same fate. Just look at a book of Leornardo DaVinci paintings. The photographs of the paintings are copyrighted, an absurd proposition since the underlying painting is in the public domain.

Sure, orphan works are a problem, but while the cartels have a stranglehold on the copyright system and the courts, no solution will be forthcoming.

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5. Branko Collin on May 15, 2005 12:05 PM writes...

IIRC, there was a sampling case not too long ago, in which the lawyer for the defense argued that the infringement was de minimis. This means, if I understand things correctly, that the damage of the infringement was so small that it did not warrant a court case.

As the judge correctly concluded, just because a sample is small does not mean that the effect of the infringement is also small. If the added value of the sample was unnoticeable, the infringer might as well have played an instrument to create the sample himself.

There are a number of things wrong with this argument, which can be seen if you turn things around: if the infringer could have easily recreated the sound himself, the added value of the sample must be minimal. Perhaps the infringer tried to lean on the value of the original creator's brand name, but there is another section of the law that deals with that. Although the size of the sample should not matter, in practice the smaller the sample, the less originality, the less worthy of copyright burden and of attention of a judge.

I was going somewhere with this, but I forgot... :-(

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