Here's my rather cynical take on things... In 3 years, the U.S. is going to pass another copyright extension act. We know this is going to happen because it has never failed to happen in the history of U.S. copyright law. Figuring out a way to placate the complaints of U.S. cultural institutions before this extension is proposed will make passing the extension a relatively painless process. This means granting some kind of limited "fair use" rights to those institutions (same as what was granted in Europe). Considering the relative stranglehold that the U.S. media industry has over U.S. politics (both on the Republican and Democratic sides), I see very little chance for any reform that would allow commercial use of orphaned U.S. media. If the government can make cultural institutions happy without angering the media industry, that is the course they will choose. I do think, however, that pushing for adoption of the rule of the shorter term is politically feasible, for two reasons:

1. It doesn't adversely affect the U.S. media industry, in fact it might actually benefit it in some cases.

2. The fact that the U.S. passed the URAA without simultaneously adopting the rule of the shorter term seems to be a glaring oversight. Bringing ourselves into full compliance with the recommendations of the Berne Convention should not be especially controversial, as it's already a convention that most of the world has agreed to.

Rather than wasting our time on pushing for ambitious reforms that will only be completely watered down in the end (and possibly make it harder to get real copyright reform), I would argue that we should put our efforts behind rule of the shorter term and at least try to get it on the radar. That's just my opinion though.

Ryan Kaldari

On Thu, Feb 13, 2014 at 9:46 AM, Luis Villa <lvilla@wikimedia.org> wrote:

Welcome, Bob! I miss Manhattan, though admittedly not as much this time of year :)

On Thu, Feb 13, 2014 at 5:30 AM, Bob Kosovsky <bobkosovsky@nypl.org> wrote:

I recently joined this list specifically because of orphan works legislation.  I recently wrote an opinion piece on public domain for The Signpost (user:Kosboot) and I saw a similar plea on the WMF blog.  Though I'm only a lowly editor, I would hope WMF would take a stand on the orphan works issue.  Part of the technique of negotiation is that you ask for more, knowing that the result will be less than what you ask for.  So I think WMF should be really bold and ask for something like treating orphan works as if public domain if no one comes forward.  I think it would be wise to parse some of Maria Pallante's words (she's the US Register of Copyright) to see what is her thinking on the matter (she seems to be more liberal than most had expected).

In any case, I'd be happy to work on such a project.

Cool! I'd suggest we could start it the same way we did the (ongoing) EU consultation - put the questions into the wiki and start drafting answers. (I would ask that this time we actually try to draft answers, not just comments - it was a lot of work to try to craft things into answers :)

And generally, I agree that we should make strong requests, but I'm definitely worried about exactly the situation Mathias raised. In the EU, the "mix a lot of requests into a pot without a practical result" approach led to a "solution" that solved nothing and now makes it much harder to reach an actual solution :/

Luis (who ran into this problem personally while trying to find an illustration for https://en.wikipedia.org/wiki/Minerva_Hamilton_Hoyt - great picture of her in a 1931 book with unfindable publisher)

 

Bob Kosovsky, Ph.D. -- Curator, Rare Books and Manuscripts,
Music Division, The New York Public Library for the Performing Arts
blog:  http://www.nypl.org/blog/author/44   Twitter: @kos2
 Listowner: OPERA-L ; SMT-TALK ; SMT-ANNOUNCE ; SoundForge-users
- My opinions do not necessarily represent those of my institutions -

On Thu, Feb 13, 2014 at 4:06 AM, Mathias Schindler <mathias.schindler@wikimedia.de> wrote:

2014-02-13 1:51 GMT+01:00 Luis Villa <lvilla@wikimedia.org>:
> On Wed, Feb 12, 2014 at 2:21 PM, Ryan Kaldari <rkaldari@wikimedia.org>
> wrote:
>>
>> Hey guys,
>> The U.S. Federal Register is doing an RfC and Public Roundtable on the
>> issue of orphan works. I would really like for us to take this as an
>> opportunity to push for U.S. adoption of the "rule of the shorter term", as
>> this would solve our URAA problems on Commons and free millions of orphan
>> foreign works in the U.S.
>
>
> I had been aware of this, but hadn't raised it here because most of the
> orphan works proposals I'm aware of are a lot like fair use - nice(ish) for
> lots of users, but not giving us the certainty we like to have when
> creating/distributing materials. But a rule of shorter term proposal would
> definitely give address one part of the orphan works problem in a way that
> would give us the certainty we like/need.

Greetings from Europe, where we can say "been there, done that" with
respect to Orphan Works legislation
(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF).

In short, the EU orphan works directive does not benefit Wikipedia for
many reasons. First, we are not among the priviledged institutions
(Article 1) and the permitted uses of orphan works are far too narrow
to help open content projects (Article 6). On top of that, the
dilligent search procedure as required by Article 3 is incompatible
with the idea of mass digitisation and the possibility to end the
orphan work status (Article 5) is fundamentally against the idea of a
lasting commons of works that can be built upon.

The consultation work by the US Federal Register should have a close
look at the way Europe did it.

I strongly recommend participation in this RfC by US based open
content projects with fundamentally different needs than, for example,
google or a public library.

Mathias

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Luis Villa
Deputy General Counsel
Wikimedia Foundation
415.839.6885 ext. 6810

NOTICE: This message may be confidential or legally privileged. If you have received it by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation, for legal/ethical reasons I cannot give legal advice to, or serve as a lawyer for, community members, volunteers, or staff members in their personal capacity.

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