(e) Save Orphan Works


The US Copyright Office is asking the public to comment on whether problems raised by "orphan works" require a solution, and what that solution might look like. We've been talking about this problem here for a while. Now we're going to use this space to help you convince the CO to save orphan works!

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Gavin Baker reports...

Gavin Baker from Freeculture.org emailed to report:

about the co-branded site [Freeculture.org] put together with the EFF and Public Knowledge at OrphanWorks.org.

Fourty-some people used our form prior to the site at OrphanWorks.org, of which 15ish checked a box to allow their comments to be made public before the end of the comment period. They're online here:

Orphan posts

Feel free to blog the new site at orphanworks.org or the already-submitted comments. If possible, eldred.cc would be better off linking there than to our form.

Thanks so much,
Gavin Baker

public knowledge

posted by elizabethTG on 9, 2005

note from larry lessig

Sorry about the intrusion, but an important opportunity has come up for you to have a positive impact on the direction of copyright law and I wanted to let you know about it directly.

Thanks to some prodding by a couple of great US Senators, the copyright office is currently considering whether to recommend changes to copyright law that will make it easier and cheaper for you to use "orphaned works" -- works that remain under copyright but whose "owner" can't be found. As many of you have written me, this is a real problem that affects thousands of innovative people every year. But the copyright office still needs some convincing.

To convince them, we need your help. If you have a relevant story, or a perspective that might help the Copyright Office evaluate this issue, I would be grateful if you took just a few minutes to write an email telling them your story. The most valuable submissions will make clear the practical burden the existing system creates. (One of my favorite stories is about a copy-shop's refusal to enlarge a 60 year old photo from an elementary school year book for a eulogy because the copyright owner couldn't be found.) Describe instances where you wanted to use a work, but couldn't find the owner to ask permission. Explain how that impacted your ability to create. Or pass this email on to someone who you know might have a useful story to add.

The Copyright Office is already overworked and understaffed, so I'm not asking that you stuff their inbox with demands for action, or anything like that. They are not Congress. They are not even the FCC. Their role here is as fact-finder, so "just the facts, ma'am." (Oops, do I need permission to use that?)

Everything you need to do this is online at http://eldred.cc. We've explained exactly what the copyright office is asking for, how and where to submit your email, and provided some examples of stories we've heard from others about how their creativity has been stalled when they've tried to use orphan works. If you have questions, there's a contact email there for people who can help you out.

In spite of my usual pessimism, I think we have a real opportunity here to move the law in a positive direction. Please help us "promote the Progress of Science" (and that text is in the public domain), by showing the Copyright Office where unnecessary regulation hampers progress.

posted by gelman on 23, 2005

obscure one-time unpublished letter writer to President Eisenhower

"It can be almost impossible to determine who might own the copyright in a letter with a chili recipe that a used car dealer sent to General Eisenhower in 1946, and yet the Papers of Dwight David Eisenhower project at Johns Hopkins University might wish to include that letter in the printed volume." (From Peter Hirtle's "Unpublished materials, new technologies, and copyright: facilitating scholarly use,"49 J COPYRIGHT SOC, 259-75 (2001).

posted by elizabethTG on 5, 2005

example: fan mail and hate mail

Writers, actors, presidents, and many others receive one-time correspondence from fans, critics, or even hate mail. These letters are often sold/donated to libraries and archives as part of the papers of a particular individual. While the library may own the actual letter, the library (or receiver of the letter for that matter) does not hold copyright. The task then becomes tracking down the one-time letter writer for copyright permission--and if one is using a collection of fan mail, this becomes a particularly ovewhelming process. These are unpublished letters with the copyright term of life of the author + 70 years. They are one more example of potentially unusable materials if one cannot find the author of the letter. Yet, they may provide rich sources of information. Morever, they would not easily be able to be put on the internet, and so will remain hidden in archives for many years to come.

posted by elizabethTG on 5, 2005

Mary Minow's writing on "good faith effort" to find a copyright owner

LibraryLaw Blog

Mary Minow, librarian and Stanford Law School alumni posted on her blog a link to an article she wrote on LLRX.com - Library Digitization Projects and Copyright

It has a useful section on orphan works called "Good Faith Efforts," and she also includes some citation on studies and other writings about librarians and archivists struggles with this problem. See Link: LLRX.com - Library Digitization Projects and Copyright.

posted by elizabethTG on 2, 2005

out of business

What happens to copyrighted materials owned by a business when the business is no longer around, and did not make specific legal arrangements for their intellectual property? This could be any kind of business--a publisher who held copyright, a computer game maker or a cake-decorating business with unique cake designs. What happens to the books, games, and cake-pictures? They are all still under copyright for a long time, but there is no one to authorize their use.

posted by elizabethTG on 2, 2005

public knowledge on notice

�The Copyright Office is to be commended for beginning this proceeding to examine the status of orphan works. We also very much appreciate the efforts of Senators Orrin Hatch and Patrick Leahy from the Senate Judiciary Committee, and Chairman Lamar Smith and Rep. Howard Berman from the House Judiciary Committee in asking that this analysis be undertaken.

�As the Copyright Office said in its notice, the evidence suggests that a large number of works may fall into the category of orphan works. We consider it extremely important, not only for the artists who are creating new work today, but also for the ideas created in years past, that orphan works be made as widely available as possible.

"The greater availability of orphan works will provide a new and valuable source of inspiration for writers, film-makers, musicians and artists generally.

�We look forward to participating in the Copyright Office proceeding, and we hope that anyone interested in enriching American culture will participate as well.�

- Public Knowledge President Gigi B. Sohn in PK press release.

posted by gelman on 1, 2005

example #1: one-time author's book from 1934

Katherine Prest's ONE OF 9000 from 1934 (Boston, MA, Marshall Jones Co.)

She is not a well-known author. I have no idea when she died. I have no idea if this work was renewed. It is forty-two pages. I use it as a key part of my manuscript, quoting a good deal from it. Is this an orphaned work? Only time will tell. Now, I have a copyright background, and so I know some steps to figure out what to do next, but the Copyright Office does not make it easy. (for copyright duration, Peter Hirtle's chart is really useful and easy to use).

posted by elizabethTG on 1, 2005

kenneth crews' article

When You Cannot Get Permission: Dealing with the �Dead End� of a Copyright Quest

This is a useful article on what currently happens when one can't find the copyright holder of a work. It also gives a nice sense of the problems and struggles associated with "orphan works," although he does not use that terminology.

posted by elizabethTG on 31, 2005


The Copyright Office seeks to examine the issues raised by "orphan works," that is, copyrighted works whose owners are difficult or even impossible to locate. Uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating them in new creative efforts or making such works available to the public. The Copyright Office requests written comments from all interested parties on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders. Comments are due by 5:00 p.m. EST on March 25, 2005. For detailed information on submission requirements and further information, go to the Copyright Office's website.

posted by gelman on 29, 2005

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PHASE 3 (home): Save Orphan Works | PHASE 2: Public Domain Enhancement Act | PHASE 1: Eldred v. Ashcroft