A different take on copyright and Orphan Works

[Greg Anos]

I have been thinking about the problems of Orphan Works, Corporations, and copyrights in the US. I came up with a different idea to help with the problem. I'd like to pitch it out here on MobileRead for others to think over and hopefully offer constructive criticism. I don't claim to have a polished, finished idea; just something to knock around...

(Moderators - the purpose of this thread is to elicit feedback. If it gets too far off the thread, feel free to put it in P & R. But I'm starting it outside of P & R in order to get the most people considering the issue. The more eyes, the more improvements, or so I hope...)

Many people (not all, Tubemonkey (RSE bows respectfully)) think that copyright is too long, especially with the continual extensions in the US. There seems to be no hope of stopping these extensions, because the corporations with the money who buy the extensions, have properties they want to protect. But these properties are usually only a few selections of their copyright library, the rest are left to molder away in their vaults.

So if the stick doesn't work....try the carrot.

What carrot? How about a tax credit (refundable) for both corporations and individuals, for copyrights released into the Public Domain? Here are the terms that I have come up with. They are not sacred, just some ideas. Please, please come up with some more.

To get the tax credit, all aspects of the work must be released. Not just releasing, say, print rights while retaining auxiliary rights, or music publishing rights while retaining a performance rights. Furthermore, to assure that this is not just a tax dodge, an archival quality copy of the work to be released must be provided to the Library of Congress so that it can later be made available to the public, and notice of release to the US copyright office.

How much should the tax credit be, and on what should it be based? I think it should be based on the accumulated royalty payments for a copyright (for an individual), and something similar (accrued profits?) for corporation owned copyrights.

As to how much, I admit I don't know. Whatever it is, it should be generous enough to encourage copyright release, without busting the US government's budget.

Finally, it should be completely voluntary. You can keep your copyright as long as the terms of copyright allow you. The government would just be offering the copyright holder a bribe to let it go early...

What say ye?

[pwalker8]

That basic issue is that with orphan works is there is no one to take the tax credit. Orphan works is defined as a work for whom it is unknown or hard to find out who the copyright holder actually is.

[FizzyWater]

I'd rather see the government go back to a copyright policy where the copyright owner has to renew the copyright (for a small fee) after a certain amount of time. Disney can keep its mouse, and most "orphan" works will become public domain.

I don't know how I feel about children inheriting copyright from their parents, though. Maybe they could inherit it for one renewal period only, or something like that.

[Greg Anos]

Originally Posted by pwalker8

That basic issue is that with orphan works is there is no one to take the tax credit. Orphan works is defined as a work for whom it is unknown or hard to find out who the copyright holder actually is.

Perhaps a cap on damages for an orphan work at the government buyback amount? If somebody claims damages, then the work is no longer orphan.

[Greg Anos]

Originally Posted by FizzyWater

I'd rather see the government go back to a copyright policy where the copyright owner has to renew the copyright (for a small fee) after a certain amount of time. Disney can keep its mouse, and most "orphan" works will become public domain.

I don't know how I feel about children inheriting copyright from their parents, though. Maybe they could inherit it for one renewal period only, or something like that.

FizzyWater, I'm trying a suggestion of what might be able to be done politically in the US. I don't think your idea can be passed. My idea has the advantage of being able to "feed the poor, destitute, artist in his old age".

I think the idea could be sold to the Corporations...

[Tarana]

an archival quality copy of the work to be released must be provided to the Library of Congress so that it can later be made available to the public,

Publishers already have to do this. Orphan works means that copyright is already not clear because of death or demise of either author or publisher. I know this is an issue in the music industry as many record labels went belly up and recordings from the 40s-70s have been orphaned. For instance, the Let's Pretend series is completely orphaned.

I think it's reasonable for the author or the children of the author of a book to retain the rights to have the work produced in a visual realm (i.e. movies), but I think publishing rights were more reasonable at 25 years from publication unless renewed BY THE AUTHOR. Why should $$ from these works be inheritable or forever protected under a corporate shield?

Anyway, I want to see what happens as a result of the new law that returns the publishing rights back to the author after 35 years regardless of contract. It just started in January, so let's see how it works.

[rkomar]

The orphaning of works is not a problem for those marketing books, it is a solution that helps them control the market. Even here on MR we've heard from those in the biz who said they don't want to compete with the public domain. Whatever solution you come up with will have to address that side of things, as well. It's not just about controlling works for publishing, but for not publishing, too.

[Catlady]

Originally Posted by FizzyWater

I'd rather see the government go back to a copyright policy where the copyright owner has to renew the copyright (for a small fee) after a certain amount of time. Disney can keep its mouse, and most "orphan" works will become public domain.

I don't know how I feel about children inheriting copyright from their parents, though. Maybe they could inherit it for one renewal period only, or something like that.

I have generally the same opinion--that the original copyright should be life plus, say, 25 years, and after that it would need to be renewed every X number of years. If it's not renewed (I'd allow a grace period of a few years for renewals), it falls into public domain.

[gmw]

RSE, I rather like the idea of a carrot to encourage release into the public domain, I think it has merit as a possible means of encouraging corporations (especially) to let go of things they're currently hoarding but not doing anything with. I'm not certain it is likely to help with truly orphaned works (as per other posts on this thread), but it might work well in combination with...

Catlady / FizzyWater, I also like the idea of a more reasonable basic period (the suggested Life + 25 sits well with me) that can be renewed at a nominal cost. I say "nominal cost" because (for me at least) the point is primarily to ensure that some action is required to show a continued interest in the copyright. This would answer rkomar's point about creators wanting to control publication while still effecting the release of truly orphaned work.

Of course the international aspects of copyright probably make such changes unlikely, but continuing extensions that affect all creations, rather than just those with active interest, seems rather silly.

[bobcdy]

I'd like copyrights based on the amount of time elapsed after the last publication (either paper or ebook). For example, if a book hasn't been published after about 20 years from its last publication, it would be declared public domain. Without such a time limit, the vast majority of currently copyrighted books (probably at least 95%) cannot be scanned and turned into free or cheap ebooks because of copyright problems, and will sit unavailable for anyone to read unless available from a public or private library.

[cromag]

This wouldn't help for true orphan works, but I'd be happy to see a declining tax credit to encourage the early release of copyrighted material. If we work on the basis that the material is going to enter the public domain at some time in the future, then, say ten years into the term allow a tax credit of X as an incentive for early release. Then, at twenty years, allow a tax credit of one half X; at thirty years, one quarter X; and so forth. (I haven't given much thought to the numbers -- just that a newer work is probably more valuable than an older work, and the tax credit should reflect that.

[LadyKate]

Originally Posted by bobcdy

I'd like copyrights based on the amount of time elapsed after the last publication (either paper or ebook). For example, if a book hasn't been published after about 20 years from its last publication, it would be declared public domain. Without such a time limit, the vast majority of currently copyrighted books (probably at least 95%) cannot be scanned and turned into free or cheap ebooks because of copyright problems, and will sit unavailable for anyone to read unless available from a public or private library.

I have to agree that this would be the best way for a work to be enjoyed. It is not earning the writer or publisher anything while it is not available to be read unless a library has a copy lol.

I would not go so far as to say all rights if not published though. For instance, why should a book published for the last time in 1993 by a young author become completely public domain, loosing them the rights for tv, movie or other media sales?

Looking at bane or smashworks, many authors offer their early works, no longer being published in paper format, free. This in turn captures a new reader who will purchase the newer books in the series or other titles by the same author.

[weatherwax]

Originally Posted by bobcdy

I'd like copyrights based on the amount of time elapsed after the last publication (either paper or ebook). For example, if a book hasn't been published after about 20 years from its last publication, it would be declared public domain. Without such a time limit, the vast majority of currently copyrighted books (probably at least 95%) cannot be scanned and turned into free or cheap ebooks because of copyright problems, and will sit unavailable for anyone to read unless available from a public or private library.

That's more or less what I thought. If a book is more than x years out of print, it should go into public Domain. Only question is: out of print where? It's might be easier to control on the German-language book market, but the English language market is bigger. And the next issue: how to verify if/since when a book is (globally) out of print.
And it does not mix well with other regulations like Life + X.

[Catlady]

Originally Posted by weatherwax

That's more or less what I thought. If a book is more than x years out of print, it should go into public Domain. Only question is: out of print where? It's might be easier to control on the German-language book market, but the English language market is bigger. And the next issue: how to verify if/since when a book is (globally) out of print.
And it does not mix well with other regulations like Life + X.

Whether a work in in print or not shouldn't be the determining factor. I'll bet that there are books that went out of print in the 1970s and 1980s that are now being reissued as e-books and making money for authors and their heirs.

And what does out-of-print mean when it comes to an e-book?

[HarryT]

Originally Posted by Catlady

And what does out-of-print mean when it comes to an e-book?

A practical example: a couple of months ago, all the "Brother Cadfael" detective stories by Ellis Peters were available as ebooks, but today they are not.