[Advocacy Advisors] Federal Register RfC on orphan works

[Ryan Kaldari]

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've already submitted a formal comment as an independent citizen, but it
would be great if the WMF also submitted a comment. The RfC page is at:
https://www.federalregister.gov/articles/2014/02/10/2014-02830/orphan-works-and-mass-digitization-request-for-additional-comments-and-announcement-of-public
Note that the page doesn't mention the rule of the shorter term at all, and
I imagine the issue isn't even on their radar. Let's fix that!

Here is the text of the comment I already submitted in case it is useful:

Due to the Uruguay Round Agreements Act (URAA), there are now millions of
orphan copyrighted works in the United States that are public domain in
their country of origin, for example, the writings of Mahatma Gandhi. These
works were previously public domain in the United States but have had their
copyrights restored by the URAA. In most cases, it is virtually impossible
to find out who technically retains the copyright since few people are even
aware that the copyrights on these works have been restored in the US.

There is a simple legal solution to this situation. The United States
should adopt the "rule of the shorter term" as set out in the Berne
Convention (art. 7-8):
"the term shall be governed by the legislation of the country where
protection is claimed; however, unless the legislation of that country
otherwise provides, the term shall not exceed the term fixed in the country
of origin of the work."

Although the US is a signatory of the Berne Convention, we have opted out
of the rule of the shorter term (See 17 U.S.C. 104), and are one of the few
Berne Convention countries that does not practice it (along with China and
Venezuela). By refusing to adopt the rule of the shorter term we are
hurting the interests of all Americans in order to benefit a small handful
of foreign authors (or more accurately, the companies and estates who
control their copyright interests).

In light of the URAA, we should balance the interests of the public with
the interests of copyright holders by following the suggestions of Berne
Convention and adopting the rule of the shorter term.

Ryan Kaldari
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