[Advocacy Advisors] Federal Register RfC on orphan works

[Luis Villa]

On Wed, Feb 12, 2014 at 2:21 PM, Ryan Kaldari <rkaldari at 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.

Luis


> 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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>


-- 
Luis Villa
Deputy General Counsel
Wikimedia Foundation
415.839.6885 ext. 6810

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