[Elfwreck]

Originally Posted by Kali Yuga

Photographers constantly get their work get ripped off, and they were concerned that the law as written would provide a massive loophole for art directors, ad agencies and other commercial entities.

I remember this, and several other groups pointing out that the way the law was set up, Disney would have almost no risk in grabbing an "orphan" work, running a few internet searches, and using it if the searches turned up blank, even if the owner showed up later to demand they stop, but if John Q PublicDude grabbed something he thought was in the public domain, and it turned out to belong to Disney, Disney could still demolish him. It was very much skewed in favor of whoever had the biggest lawyers.

The opposition had nothing to do with the Google Books issues, as far as I can tell. Nor did big corporations have much to do with it not passing into law.

This is the first I'd heard of any connection to Google. Only possibility I can see, is that when the orphan works bill was shelved, its proponents might've said, "meh, Google is working out something; we'll wait for that to go through before we get on to the next phase." But there's nothing in the Google settlement that connected with the orphan works bill.

I might add, it's not like Google has to delete the scans; they just can't use the material until copyright expires or they bother to get the rights.

Sort of. If the can't reach an agreement that a judge will accept, the Author's Guild could, theoretically, seek a ruling where Google pays them or copyright owners $150,000 for each book they scanned, and has to delete them from their archives as illegal copies. But I don't see that happening; pretty much nobody wants those scans gone; they're just arguing over who has the right to use them & profit from them. (Which seems a very valid thing to argue over.)

Legislators need to figure out a way to deal with orphan works that won't gut copyright or put independent content creators out of business. It's not an easy task. But it's not only better, but it's legally and constitutionally required for this to be fixed via legislation rather than in a courtroom.

Only solution I can see is to throw out the Berne convention and require registration of copyright, perhaps after an initial free period. 25 years of "everything is copyrighted," and then you have to register it to keep your rights--that cuts the orphan work population down to a manageable amount with likely-findable rights owners.

The problem with life+70, unregistered, is trying to find someone's legal heirs up to three generations after their death, and then trying to get those heirs to understand their role in the copyright process. (My father's mother died over 35 years ago. If it turned out she wrote a poetry book in her youth, I have no idea who'd have the rights to it... her three sons? Their six children? Their unknown-number of children?)