Hello,
I am talking about cases where no actual copyright holder can claim anything, not about other cases.
I see at least two cases where this occurs:
1. As Ray mentioned, the copyright holder was a corporation which is bankrupt, and no entity has acquired the rights. This can be determined fairly accurately.
2. If the death date of the author is not recorded anywhere, especially not in any national databases, such as the Library of Congress, how could you claim any copyright? This is fairly common for translators of minor works before WW2. If this date is not known, no copyright holder can claims anything, as the burden of the proof is on the accusation. Again I don't talk about the fact that the heirs are certainly not aware of their rights if the date of author's death is not known.
So there exists some cases when nobody can claim any copyright, although the work is not legally in the public domain. Most of your arguments below do not apply in that situation. Alberto Korda does not belong to this case. It is still different that the case where "the copyright holder could claim something, but he is not known and/or he is not aware of his rights". Please do not mix cases in a grand argument against "orphan works".
Regards,
Yann
geni wrote:
On 24/03/2008, Yann Forget yann@forget-me.net wrote:
I think that this argument can be easily reversed. Copyright without a copyright holder is just nonsense, because only the copyright holder can claim it. Nobody, not even the "State" or any public body, can do it on the holder's behalf. So I think that we should apply common sense, and allow images of which the copyright holder has disappeared in the mists of time.
Are you prepared to agree to cover any costs that result from such a policy?
While you and I might be unable to trace a given copyright holder that does not mean that such a person does not exist and decide to start exercising their rights.
A few years back you might have thought it fairly safe to conclude that Alberto Korda wasn't going to enforce his copyrights. As Smirnoff discovered you would have been wrong.
Worse still IP can be inherited. The nice old Mrs Smith may not chose to enforce their copyrights be the son who works in the city and sees another opportunity for profit? Or Getty buy up yet another defunct photo agency and guess what they find in the collection that you thought no one would ever enforce copyright on?
After decades of mergers sales and bankruptcies you might think that certain copyright have become orphaned. United Amalgamated Consolidated Holdings are likely to think otherwise.
Gets better than that. You claim the state can't get involved? Well firstly that isn't universally true and even where it is what of the case where a person dies without a will or any heirs at all?
Then there is the problem of defining orphaned works. Fact is legally it is extremely hard for a work to become orphaned. How exhaustive does the search have to be before you consider a work to be orphaned?
Oh and if you think you can answer the above questions remember since we are talking foundation policy you realistically need to be able to answer them under US law, non US English common law based systems and Napoleonic code based systems.
Wikipedia copyright policy is generally crafted to keep grey areas to an absolute minimum. Advocating a course of action that would increase the number of grey areas is not a good idea.