Delirium wrote:
Ray Saintonge wrote:
I agree with Anthere that we perhaps should
submit something
representing WMF, but it's hard to know what kind of official
position we should take In my own submission I certainly could not
go so far as to state that I was representing the Foundation. They
were entirely my own opinions. What points should we be makeing?
I was thinking about this a bit, and I'm not that sure it strongly
impacts us, especially in a way that's easy to convincingly explain.
The major thing Wikimedia is known for is Wikipedia, which really is
unlike most of what's been written in the past, whether in or out of
copyright. Sure, we imported en masse some 1911 EB articles, but even
if all copyright disappeared entirely, the current revision of EB
would need substantial work to be turned into good Wikipedia
articles. I'm not sure it would buy us that much over just getting
some more writers. And with images, we can either generally take
images ourselves (something that's happening increasingly often), or
rely on fair use for historically important images that are still
under copyright. There are a few cases where asking for permission
would be helpful, but in general an orphaned work is no worse from our
perspective than a work that's non-orphaned but where a copyright
holder simply refuses to grant us a GFDL or CC license to it.
Wikisource probably suffers the most direct impact, but again,
orphaned works aren't a unique problem---copyrighted but non-orphaned
works are no better.
I get the impression that the case the copyright office is most
interested in is one that doesn't impact us at all: The case where
someone is willing to pay a copyright holder for a license to use
their work (e.g. for a film adaptation of a book), but cannot do so
because the copyright holder is unable to be located.
We can't afford to be short-sighted in determining how this affects us,
and I don't see ease of explanation as a significant criterion. It's
clear that the effect of these issues is most direct and immediate on
Wikisource, but this does not prevent the issue from coming up
elsewhere. In Wikipedia we still require original writing at the same
time as we reject original research. Fair use is barely tolerated, and
even though taking our own images is often a possibility this is, as you
acknowledge, not an available option for historical photographs. We
could probably invoke fair use to a greater extent than has been the
case, but a more specific and objective set of criteria that could be
applied _before_ we consider fair use would make life much easier for
our editors.
I'm less worried about copyright holders who refuse to give permission,
than about ones whom we can't find at all. With a refusal you have the
benefit of knowing where that person stands, and if the refusal is based
on wanting to keep the material away from the public eye the fair use
argument that publishing would not affect the market for the work
becomes much stronger. With orphan works the copyright holders would
probably often be delighted to have the work published if you can ever
find them to ask. Many descendants have no clue that their ancestor
ever wrote anything. The uncertainty is the big problem.
We had a discussion recently about whether a person had the right to
give his work into the public domain. I think that the argument against
doing this was unsound, but the question does come up. A recurring
problem lies in whether a person di in fact put his work in the public
domain. The issue has come up in regards to "The Man Who Planted
Trees", and whether a letter by the author was sufficient evidence that
he had done so. It would be nice to have a central registry for public
licences of various sorts or for grants into the public domain. As one
of my more adventurous ideas I would even suggest a charitable donation
deduction on one's taxes for giving a work into the public domain. 8-)
That could bring a lot of orphan works out of obscurity.
I don't think that I would impugn the same motives on the copyright
office that you do. If anything Sonny Bono's efforts brought the
copyright pendulum to the extreme end of its swing, and far enough there
to make more people notice that it had gone too far. The Copyright
Office is in position to receive a lot of complaints about the present
situation at a time when it can do little about it. Many of these
complaints may be in the form of letters by constituents to their
congressman that have been referred for explanation. I'm sure they
would appreciate having that job made easier. Never underestimate the
power of rural little old ladies who just want to update the history of
their local community only to be thwarted by a bureaucracy that prevents
them from using the material of a neighbour who died childless thirty
years ago. They know he's dead because they attended the funeral.
Ec