Copyright in the US and the orphan dilemma

If an organization wishes to use a copyrighted work, but no copyright owner can be found, the organization has a choice. It can forgo using the work, or it can use the work without permission, gambling that no copyright owner will appear.

But if the organization loses that gamble, the costs can be high: treble damages for willful infringement and an injunction against any further use of the work.

Many museums, libraries, filmmakers and others will not gamble on using orphan works. “Many users of copyrighted works have indicat-ed that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work,” states the 2006 Copyright Office report.



“Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work.”

Congress has done little to remedy the situation. If anything, bills adopted over the past 25 years have exacerbated the orphan works problem, some experts say.

“We used to have a system that said you didn’t get a copyright unless you registered your work or put on a copyright notice,” says Jessica Litman, a professor at the University of Michigan Law School in Ann Arbor. “In 1976, we changed all that. Copyright is now automatic.” As a result, many copyrighted works now lack any easily accessible data about their copyright owners, she says.

Under the 1909 Copyright Act, federal copyrights lasted 28 years and could be renewed for an additional 28 years. But studies indicate that the renewal rate was never more than 22 percent, so most works received copyright protection only for the initial 28-year period.

The 1976 Copyright Act did away with renewals and created a single, much longer term of copyright protection. For works set down in a fixed form on or after Jan. 1, 1978, the statute granted copyright protection for the life of the author plus an additional 50 years. For works of corporate authorship (primarily works for hire), the law granted copyright protection for 75 years from the date of publication or 100 years from creation, whichever came first.

Congress further increased the copyright term in 1998. The Sonny Bono Copyright Term Extension Act tacked on an additional 20 years to all periods of copyright protection. Under the law, an author’s work is now protected for life plus 70 years, while works of corporate ownership are protected for 95 years from publication or for 120 years from creation.

Works that were created before 1978 and covered by the 1909 Copyright Act did not benefit from these changes. But those works had benefited earlier. In 1992, Congress made copy- right renewals automatic for works covered by the 1909 act.

As a result of these changes—many of which were adopted by Congress to accommodate obligations under international treaties—a large number of works that otherwise would have fallen into the public domain over time may be used only with copyright owners’ permission. Moreover, longer copyright terms mean that copyright searches must go back further in time, making it harder to track down the copyright interests of individuals who may have moved or died, or corporations that may have merged, sold their assets or gone bankrupt.

In its 2006 report, the Copyright Office described the orphan works problem as “a byproduct of the United States’ modern copyright system [that] has been with us since at least the day the 1976 act went into effect.”

But some orphan works fall outside the scope of federal law, and their use is governed by state law.

Consider, for instance, the recordings made by Savory. The songs the musicians played might have been registered with the U.S. Copyright Office and protected by the 1909 Copyright Act, but the recordings themselves are not covered by federal copyright law.

It wasn’t until 1971 that Congress amended the law to cover sound recordings, but that gave federal copyright protection only to recordings made on or after Feb. 15, 1972. Prior recordings are protected only by various state laws.

In its 2006 report, the Copyright Office urged Congress to enact legislation that would protect any entity that is unable to locate a copyright owner after conducting a “reasonably diligent search.” If the entity subsequently uses the work and is sued for infringement by the copyright owner, the entity would not be liable for statutory damages or willful infringement. Instead, it would have to pay only “reasonable compensation” —in other words, a reasonable license fee. Moreover, the entity would not pay anything if it uses the work for noncommercial purposes and expeditiously stops using the work after receiving notice from the copyright owner. The Copyright Office also called for limits on injunctive relief for copyright owners in orphan copyright cases.

“The Copyright Office felt this was a reasonable balance because it wouldn’t put orphan works into the public domain, but would minimize the risk of using such works if and when their owners came up,” says Hillel I. Parness, a partner at Robins, Kaplan, Miller & Ciresi in New York City.

Soon after the Copyright Office issued the orphan copyrights report, a bill incorporating its proposals was introduced in the House of Representatives; but it never made it out of the Judiciary Committee. In 2008, similar legislation was introduced in the House and Senate. The Senate unanimously passed the bill; but again, the measure never made it out of the House Judiciary Committee.

A major reason why these bills stalled was opposition from organizations representing professional photographers, whose works are usually published without any attribution or copyright notice. “That’s why the photographers’ refrain is that their photos are orphans from the moment they are put in the stream of commerce,” says Ralph Oman, who teaches at the George Washington University Law School in Washington, D.C., and serves on the council for the ABA Section of Intellectual Property Law. “They fear that if orphan works become the preferred means of finding photos, they won’t get new work,” Oman says.

Excerpted from
http://www.abajournal.com/magazine/article/a_trove_of_historic_jazz_recordings_has_found_a_home_in_harlem_but_you_cant/