An individual's right to protect creative and intellectual property is becoming increasingly important in an age of digital technology and the Internet. Students and professionals must understand the laws governing what constitutes ownership of their work.
At the center of a growing controversy is what will happen to millions of documents and works of art that may no longer be protected under proposals to revise U.S. copyright law. Eric Eldred broadly defines orphan works as "any copyrighted works where the rights holder is hard to find."
In January, the U.S. Copyright Office along with the Library of Congress released a study exploring the uncertainty of ownership related to creative and intellectual properties. There are millions of documents, images, songs, and other creative and intellectual works sitting on shelves whose ownership is questioned. Much of this work sits in copyright limbo-land.
New legislation being proposed could be beneficial to the public on one hand, but possibly financially detrimental to individuals who have lost track of their creative works for one reason or other.
The need for revisions to the law has a historical context, according to the U.S. Office of Copyright:
The Copyright Act of 1976 made it substantially easier for an author to obtain and maintain copyright in his or her creative works. Today, copyright subsists the moment an original work of authorship is fixed in a tangible form--it need not be registered with the Copyright Office or published with notice to obtain protection. While registration of claims to copyright with the Copyright Office is encouraged and provides important benefits to copyright holders, it is not required as a condition to copyright protection. Under the 1909 Act, renewal registration was required to maintain protection beyond an initial 28-year term. Failure to register the renewal during the last year of the first term resulted in complete loss of protection. The 1976 Act removed the renewal requirement going forward, but kept it for works copyrighted before 1978. It was not until 1992 that the renewal requirement was abolished altogether. These changes, as well as other changes in the 1976 Act and in the Berne Convention Implementation Act of 1988, were important steps toward harmonizing U.S. copyright law with international treaties. Specifically, the Berne Convention and other treaties dealing with copyright that have followed forbid the imposition of formalities as a condition to copyright, principally on the grounds that failure to comply with formalities can serve as a trap for the unwary, resulting in the inadvertent loss of copyright.
The Copyright Office has reported to Congress and public hearings have been held with supporters and opponents of revising copyright laws related to orphan works. A bill on Orphan Works could now be fast-tracked through Congress, and some people remained concerned.
The supporters of revising the law claim that "such [orphan] works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public."
Opponents challenging any orphan works legislation claim that the law infringes on an individual's ability to protect his or intellectual property from inappropriate use without fair compensation. The revision would basically place the burden of proof related to ownership once it is appropriated by someone else on the original creator.
Ron Rovtar in Stock Asylum notes, "vague language about the amount of effort an infringer must put into searching for a copyright owner and significant limitations on the legal remedies for owners who surface later have caused considerable concern among organizations that represent copyright owners."
Rovtar continues:
The resulting orphan works proposal put forward by the Copyright Office late last month would legalize infringement after the infringer "performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner." The infringer would have to provide attribution to the author, if possible.
The America Society of Media Photographers has launched a "fax" campaign to make sure lawmakers are aware of the possible negative impact any Orphan Works changes would have on professionals. ASMP has been good about posting updates on the issues: click here for more.
A good source for educating ourselves about the fundamentals of copyright law without getting overwhelmed with legal jargon comes form the Duke Law Center's Bound by the Law project. Bound by the Law is a comic book about public domain and copyright issues.