[A2k] Patti Waldmeir in the Financial Times: Copyright is stifling US culture

[Thiru Balasubramaniam]

<SNIP>

The US Copyright Office wants Congress to rewrite part of the copyright
law to deal with the problem of =E2=80=9Corphan works=E2=80=9D, whose owner=
s cannot be
found. The internet is full of such orphans: the vast majority of photos
that appear online do not identify the photographer, making it
impossible to ask permission to reuse them.

American universities, museums and libraries hold huge collections of
material that they dare not post online because of the risk of massive
liability if an unknown copyright owner later surfaces to sue them.

<SNIP>

The Copyright Office wants big legal changes to deal with this problem.
It wants those who do a reasonably diligent search for a copyright
holder =E2=80=93 and fail to find him or her =E2=80=93 to be able to use a =
copyrighted
work without fear of bankrupting damages. If the orphan=E2=80=99s parent la=
ter
surfaces they could claim reasonable compensation, but no attorney=E2=80=99=
s
fees or statutory damages =E2=80=93 the costs that normally deter publicati=
on of
orphan works entirely.

<>
<SNIP>

But photographers have an alternative. They could identify their works
and maintain some kind of registry, as musicians do. If users can find
the copyright owner, they cannot claim the orphan works safe harbour.
The Copyright Office says the real goal is not to allow creative works
to be used for free =E2=80=93 but to make sure that copyright owners and us=
ers
can find each other to negotiate a reasonable licence fee in the first
place.




-------------------

Patti Waldmeir: Copyright is stifling US culture
By Patti Waldmeir
Published: April 19 2006 18:19 | Last updated: April 19 2006 18:19

Ten years ago =E2=80=93 when the internet was still young =E2=80=93 June Cr=
oss made a
film called /Secret Daughter/, a chronicle of her mixed-race family in
New York in the 1950s. It is a painful tale of a black father, a brown
child and the white mother who abandoned her when she became =E2=80=9Ctoo d=
ark
to pass for white=E2=80=9D.

One of the cameo shots in this remarkable film shows Ms Cross=E2=80=99s fat=
her
holding his infant daughter in a home movie made in Harlem in 1954. But
merely to include this shot of her father =E2=80=93 whom Ms Cross did not m=
eet
again until she was nearly 30 years old =E2=80=93 meant weeks and weeks of
searching for the elderly home-movie buff who owned the copyright to the
footage.

Using the picture without permission =E2=80=93 even if the copyright owner =
were
dead or could not be located =E2=80=93 could have exposed Ms Cross, and any
network that aired the film, to a crippling copyright lawsuit. This is
how copyright is stifling culture in America: even our history is not
our own =E2=80=93 unless the lawyers say it is.

Just when technology has made it possible to capture the texture of our
culture in ways never before imagined =E2=80=93 by posting the rich multi-m=
edia
detritus of our history online, from old photos to letters, songs, home
movies and even e-mails =E2=80=93 copyright law is stymieing that effort.

The internet makes it easy to preserve and share our history =E2=80=93 and =
even
make money from it =E2=80=93 by digitising the fragile, obscure and mundane=
 and
posting it where every Googler can find it online. But the law makes it
impossible to do so without clearing the copyrights first =E2=80=93 and,
especially when it comes to older works of popular culture, that can be
impossible to do.

The US Copyright Office wants Congress to rewrite part of the copyright
law to deal with the problem of =E2=80=9Corphan works=E2=80=9D, whose owner=
s cannot be
found. The internet is full of such orphans: the vast majority of photos
that appear online do not identify the photographer, making it
impossible to ask permission to reuse them.

American universities, museums and libraries hold huge collections of
material that they dare not post online because of the risk of massive
liability if an unknown copyright owner later surfaces to sue them.

Dealing with all these orphans is a hugely costly business: Cornell
University, for example, says it spent $50,000 of staff time and several
months calling publishers, authors and authors=E2=80=99 heirs, trying to ge=
t
permission to digitise 343 monographs on 19th- and 20th-century
agriculture =E2=80=93 and still failed to identify 58 per cent of the owner=
s.

The same Cornell collection has 350,000 unpublished photos but only
1=E2=80=89per cent bear any mark of ownership. They do not need to: US copy=
right
law does not require owners to register copyrights and there is no
centralised list of who owns what. Copyright protection is automatic,
once any creative work =E2=80=93 even the lowliest e-mail =E2=80=93 is in f=
ixed form.
That has created millions of copyright orphans.

The Copyright Office wants big legal changes to deal with this problem.
It wants those who do a reasonably diligent search for a copyright
holder =E2=80=93 and fail to find him or her =E2=80=93 to be able to use a =
copyrighted
work without fear of bankrupting damages. If the orphan=E2=80=99s parent la=
ter
surfaces they could claim reasonable compensation, but no attorney=E2=80=99=
s
fees or statutory damages =E2=80=93 the costs that normally deter publicati=
on of
orphan works entirely.

America=E2=80=99s photographers are against the mere notion of such a regim=
e.
They say it would amount to =E2=80=9Ca de facto retroactive confiscation of
copyright in most photos and digital images=E2=80=9D, in the words of Victo=
r
Perlman of the American Society of Media Photographers, who testified a
fortnight ago at a Senate hearing on the issue.

In a world where most photos are worth less than $500, what photographer
could afford to sue even the most blatant infringer sheltering behind
the orphan works law, they ask? They say the new proposal is just a
licence to steal.

But photographers have an alternative. They could identify their works
and maintain some kind of registry, as musicians do. If users can find
the copyright owner, they cannot claim the orphan works safe harbour.
The Copyright Office says the real goal is not to allow creative works
to be used for free =E2=80=93 but to make sure that copyright owners and us=
ers
can find each other to negotiate a reasonable licence fee in the first
place.

The current situation is lose-lose all round since no one dares to use
the orphan works =E2=80=93 and no one gets paid for them either. Copyrights
should be like other forms of property =E2=80=93 those who do not protect t=
heir
property should not expect courts to do all the work for them. As
Lawrence Lessig, of Stanford Law School, says: =E2=80=9CCopyright owners ha=
ve a
responsibility to make the copyright system function more efficiently=E2=80=
=9D.
That means, at the very least, remaining accessible.

Congress should listen to the Copyright Office on this one =E2=80=93 it is =
high
time copyright law stopped getting in the way of the wonders of the
digital age.