mfioretti: copyright duration* + orphan works*

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  1. What amazes me is that this giant set of missing works isn't seen as a bigger deal by policy makers (outside of Reda). This is a massive loss for society and the public based on copyright today -- and could be easily avoided with a few basic changes to the law, including things like requiring registration of copyrights and, if not shortening the term length of copyright significantly, at the very least, requiring the copyright holder to re-register the work over time. As we've pointed out in the past, prior to the 1976 Act, copyright law required registrations and renewals (at the 26-year mark) and the vast majority of works were simply not renewed at that point, because there was no economic incentive to do so.
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  2. “During the First World War Centenary commemorations, many organisations want to make original unpublished works such as diaries and letters accessible to the public. Because they are still under copyright protection, they cannot do so without seeking permission from the rights holder. This is even more problematic if the rights holders are untraceable.

    We are asking everyone who cares about our history, everyone who cares about telling our collective story without restrictions, to join the campaign.”

    Up to 50% of archival records in the UK are ‘orphan works’. This is when the rights holder cannot be identified and/or traced. The Imperial War Museum has an estimated 1.75 million documents that are orphan works, approximately 20-25% of the 7.9 million documents in their collections.

    The campaign is calling on the UK Government to reduce the term of copyright protection in certain unpublished works from the end of the year 2039 to the author’s lifetime plus 70 years, as per provisions laid out in the Enterprise and Regulatory Reform Act (ERRA) 2013.
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  3. What works were at issue in Golan? As Breyer described, “foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.” Moreover, many of these were obscure orphan works (works with no locatable rightsholder) that are now effectively off limits to educators, film collectors, community orchestras, and database compilers who previously had the right to use them for free.

    What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.
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  4. Most of the works highlighted here are famous – that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. (This is true for many of the works featured on this page, though even the shorter copyright term exceeds the commercial lifespan of a surprising percentage of successful works.) But we know from the Copyright Office that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew), since most works exhaust their commercial value very quickly.

    That means that all these examples from 1956 are only the tip of the iceberg. If the pre-1978 law were still in effect, we could have seen 85% of the works created in 1984 enter the public domain on January 1, 2013. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century.

    Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1956 do not retain commercial value.3 This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.
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  5. it seems like a good opportunity to recall the underlying complexities of calculating copyright term duration: If you have a fast internet connection and a big screen, you may want to take a look at this 25 MB pdf, which depicts the decision trees for 30 european jurisdictions that power the public domain calculators on
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