The Copyright Laws Remain Vague, Unclear & Stupid

Infringement Is Everywhere: Congress Addresses 'Orphaned Works'

The efforts to expand the provisions of the copyright laws by the pro-business GOP-dominated congress over the last 4 presidential administrations have left issues of the "fair use doctrine" completely undermined. The very notion of the copyright was not to provide a totally exclusive right to the works, but a right to profit from the useful arts and sciences. In short, society was to be the end beneficiary of the works created by authors, artists and inventos. But that is not how the copyright is being played by congress. At this point in time, I could be drawn into a law suit claiming copyright infringement for writing reactions to the news and quoting the articles that cause me to react.

Ten years ago such vagueness was not the case. Twenty five years ago there was a clear precedent that not-for-profit academic or public good use of an article was perfectly acceptable. Then, too, a person owning a recording of any kind could make a copy of tapes, CDs, videos, DVDs or other electronic media for archival and research purposes, as long as distribution--especially distribution for a profit--was not undertaken. Additionally, a person could mix a tape or cd, drawing from his/her personal library of resources, for personal use. Such is not the case today... at least not without running afoul of the big business of the publishing, music, movie or television industries. Unfortunately, the end result is that we have restricted the flow of information to a level that was not the intent of our founders and framers. By extending the copyright laws to allow a ridiculous level of protection to big businesses, we are actually undermining our society. But we must recognize that it was the efforts of lobbyists and influence peddlers that brought us the current levels of ludicrous copyright levels and the overly zealous enforcement efforts of the FBI (which are spurred on by these very same industries).

An "orphaned work" isn't an easily identifiable thing. A work is orphaned when the copyright owner cannot be found after a diligent search. This is not the same as an abandonment of the copyright. In fact, unless the work was created prior to 1923, the work most likely still is under copyright. And this creates a dilemma. A person wishing to use a copyrighted work without permission risks liability down the road. But the alternative is to forego the use, which has the effect of incrementally diminishing our culture of ideas and creativity.

WHY IS THIS IMPORTANT?

Congress and the Copyright Office recognize that the problem of orphan works is real and growing. Because copyright registration is no longer required, an ownership record is unlikely to exist. In addition, as a practical matter, because the term of copyright has been extended for as long as 70 years from the date of the author's death, there are relatively few new entries to the public domain. And if the work is that of a corporation, then the term is the shorter of 95 years from publication of 120 years from creation. Works published as early as 1923 might still enjoy protection in 2018!

With the passage of such lengthy periods of time, the ability to trace the copyright owner becomes more difficult. Copyright owners move. Authors die. Publishers cease to exist. Corporations merge or change name. Attribution is removed from photos. Internet content gets separated from its source of origin. For all of these reasons and more, our future ability to create new works using existing material is at significant risk.

The risk of liability is not to be taken lightly. Any infringing use (even a somewhat limited instance) is illegal but far too many people mistakenly continue to believe that they will not be caught. In this digital and very public Internet age, an infringing use is more detectable than ever before. In addition, damages can be significant. Should the previously unknown copyright owner appear and make a claim, the Copyright Act provides for an award of actual damages, and may, under certain circumstances and the court's discretion, provide for statutory damages of up to $150,000 per infringing work, along with an award of attorney fees.

It is not an overstatement to say that our culture will be diminished under these circumstances. Libraries, archives and museums already complain that they will not distribute and display art, photos, illustrations, texts and letters when ownership is unclear. The Copyright Office predicts that material will become unavailable for documentary filmmakers. You may need to advise a client against building upon the work of another even though your client is more than willing to obtain permission. Even the reproduction on a reunion Web site of an official prom photo from decades ago becomes risky. Works of even earlier copyright eras are now protected for up to 95 years from publication with a copyright notice -- and who knows where that prom photographer is today?