[Foundation-l] Comment on Copyright Orphans

[Ray Saintonge]

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