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No
Copyright Left Behind
Don’t
forget the Future of Mu sic Coalition’s working-musician seminar
next Wednesday at the Clarion Hotel over on Everett Road.
I’m told registration is through the roof so if you haven’t
signed up do it now: futureofmusic.org.
Two weeks ago, when I raved about the brilliance of the panelists
at the seminar, I didn’t have any idea that I’d be invited
to be a panelist, too. Oops! Really, when I indulge in shameless
self-promotion I at least try to be upfront about it. See
you there.
I’ve been deluged over the last week with e-mails from worried
clients and artist friends about this horrible Orphan Works
copyright legislation before Congress that’s gonna wipe out
everybody’s copyright. And bears, oh my! The culprit is a
hysterical Web post by some guy named Mark Simon on the Animation
World Network that has somehow gained viral traction and that
people are apparently believing.
It’s all nonsense. Mr. Simon is, IMHO, an idiot. Blogger Meredith
Patterson puts him rightfully in his place, and describes
what is really going on, at maradydd.live journal.com. If
anyone sends you Simon’s post, please send them Meredith’s.
If there’s one thing I hate, it’s lies and ignorance in public
discourse.
Here’s the deal: Since 1978, everything that’s been created,
and much of everything that hadn’t been published prior to
1978 or already fallen into the public domain, suddenly were
bestowed with automatic copyright ownership. A creator doesn’t
need to do anything but create to have federally protected
copyrights.
The problem being that much of what’s out there is stuff that
no one is interested in protecting. Only a small fraction
of what’s been created has a copyright owner thinking that
he or she is going to ever be paid for it. For the vast majority
of stuff someone may have once cared about at one time, there’s
no current interest. Back when copyrights had to be registered
and renewed after the initial 28-year term, less than 15 percent
of the registered copyrights were renewed. Nobody cared.
This has caused a real problem with the public: What creative
works can be used, reused, revived, incorporated, or messed
around with when, under the current law, virtually everything
is technically subject to copyright ownership by somebody,
even though, for the vast majority of stuff out there, there
is no somebody—at least no somebody who cares about their
copyright?
It’s a massive disconnect, and I’ve seen it play out again
and again in ways that inhibit the dissemination of information,
of knowledge, of beauty, because folks were paranoid of publishing
pre-existing works out of fear that somebody would pop up
out of nowhere and say “that’s mine!”
In her blog, Patterson uses the example of your parents’ wedding
pictures from 1955. You want to publish them? Guess what?
The copyrights are probably owned by the photographer! Who
was who? And is now where? You don’t know? Uh-oh. I get asked
all the time by archivists and historians about what they
can and can’t do with a box of old photos, or paintings, or
manuscripts, or books, that were found in an attic of an old
house, and that contain wonderful glimpses of history, and
for which a creator or current copyright owner cannot be determined.
I explain that publishing this stuff will involve a bit of
risk that a copyright holder might appear and spoil the party.
Archivists and historians generally don’t want to know from
risk. So all this great stuff stays in boxes.
The Orphan Works legislation that Mr. Simon is so wigged out
about, and doesn’t remotely understand, hasn’t even been introduced
yet, but word is that it will be soon. The legislation will
probably seek to rectify the problem of lingering, abandoned
copyrights, to loosen this stranglehold of ghosts on our culture,
by allowing the reuse of pre-existing materials in situations
where after a reasonably diligent effort, no copyright owner
has been located. If, after the work is re-published, a copyright
owner shows up and says “that’s mine,” the copyright owner
will be entitled to a reasonable licensing fee for the use,
but won’t be able to stop the use.
Space doesn’t allow me to go into the details and potential
problems of the Orphan Works law, and they are significant.
But suffice it to say that there’s no bogeyman, there’s no
abject stealing, the sky is not falling, artists will not
starve while freezing in the dark. Nothing in the realm of
copyright law is ever even close to being perfect, and this
law certainly won’t be. Stuff can be gamed, faked, copyright
owners may have to be a little more vigilant. But the world
won’t be that much different than it is already: the world
of copyright is already a world of gaming and faking, and
copyright owners are supposed to be vigilant about their works.
The net from the Orphan Works laws, if they’re done right,
will be a huge positive.
—Paul Rapp
Paul
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMC’s Vox Pop. Contact info can
be found at www.paul rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.
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