Orphan Works

Concerns have been raised, however, as to whether current copyright law imposes inappropriate burdens on users, including subsequent creators, of works for which the copyright owner cannot be located (hereinafter referred to as ?orphan?’ works). The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be. Such concerns were raised in connection with the adoption of the life plus 50 copyright term with the 1976 Act and the 20-year term extension enacted with the Sonny Bono Copyright Term Extension Act of 1998.

The Copyright Office has long shared these concerns about orphan works and has considered the issue to be worthy of further study. —Orphan Works (Copyright Office, Library of Congress)

I chose the literary period 1920-1950 for my dissertation because, under the law at the time I entered grad school, works that were published during those years would come out of copyright one by one during my leisurely scholarly march towards retirement, and I imagined that I could while away the years producing inexpensive annotated editions (online, if necessary).

But the law changed.

The copyright office is calling for written comments as it considers what to do with orphan works.

It seems that 25 years would be a generous time period for all authors. To get another 25 years of protection, I think authors ought to make some non-token payment to get another 25 years of protection, followed by increasingly more expensive fees for increasingly short periods of time. My idea is that charging Disney a million bucks to keep its control over Winnie the Pooh for a sixth or seventh decade would support quite a lot of copyright title searches and the activities of quite a few common-domain lobbyists. There ought to be some cap, beyond which no amount of money would extend copyright. At present, the law designed to work for incredibly lucrative properties like Mickey Mouse and Winnie the Pooh is ridiculous when applied to obscure content without megabusiness value.