January 28, 2005  ·  Lessig


As is old news (but everything on the Lessig Blog is old news), the Copyright Office has asked for comments on whether a solution is needed to deal with “orphan works” — works still under copyright but whose owner cannot be identified.

This, as PublicKnowledge notes, fantastic news. For many years, many have been trying to refocus this debate on copyright from the binary questions that p2p sharing seems to raise (“seems to”) to the more pragmatic and fundamental questions that this insanely inefficient and bizarrely complex system of speech regulation called copyright raises. When Congress shifted our system of copyright from an “opt-in” to an “opt-out” regime, it transformed copyright from a system that automatically narrowed its protection (and hence regulation) to those works that had some continuing need for copyright protection, to a system that totally indiscriminately spreads copyright to every creative work reduced to a tangible form — automatically, and for the full term of copyright.

This issue is the focus of our challenge in Kahle v. Ashcroft. It is something I’ve been whining about in every publication that will have me (see, e.g., this op-ed in the LA Times).

But this is an issue that I’ve only become aware of because of the writings and emails from many who visit this space. And it is time for you to speak to government. No one who read the emails that I’ve collected could think that this was not a problem. But the copyright office doesn’t accept email inboxes. It reads submissions only. The requirements are simple. Submission is free. We’ll be organizing as many submissions as we can at eldred.cc. But please help spread the word: The Copyright Office needs to hear about every example of where the existing system is stifling the cultivation and spread of our culture. Not because Congress extends the term of copyright for Mickey Mouse. That battle is over. But because the way in which it protects Mickey Mouse blocks access to the balance of our copyrighted culture – for no good copyright, or free speech, related reason. This point is clear to many. You need to make it clear to the government.

  • http://www.boobam.org William Loughborough

    “And it is time for you to speak to government.”

    That train done passed. We supposedly ARE the government. There’s become a “they” out there and things like blogs, and more to the point P2P file transfer leading to massive scofflawing is likely the only means of there being a “rule of law” – OUR law.

    You can’t seriously believe that playing with their cards but our money is likely to have any effect beyond our own co-option – or can you?

    Note that Abe didn’t say “of/by/for the owners”. The notion that musicians need “incecntives” of the power sort in order to sing is so absurd that it barely deserves comment.

    Kick out the jambs, my man!


  • http://demandmedia.net/ akb

    I have seen many eloquent descriptions of the problems posed by orphan works but I have never heard a proposal for a workable system that the Copyright Office on its own could implement. I don’t see how the problem can be addressed under current law. Its seems either Kahle v Ashcroft will have to succeed or Congress will have to reverse the direction it has been going for decades. I would love to be mistaken on this.

    There is a problem related to orphan works that is well within the Copyright Office’s power to fix, that is digitizing the copyright registration and renewal records. Many works between 1923 and 1978 are in the public domain but there is no way to accurately tell without doing a copyright search. This process involves physically looking through paper records and costs around $100 if you have to hire the LoC or a freelance researcher to did it for you.

    It is bitter irony that based the Internet Archive and Google’s cost estimate for scanning, the cost of determining if a book is in the public domain far exceeds the cost of putting it online. Hopefully the digitization efforts undertaken by the Internet Archive and Google will shame the Copyright Office into digitizing these records.

  • http://cubanlinks.org/blog Carter Rabasa

    The URL you have:


    …is missing an “l” at the end. The correct URL is:


    Just an fyi.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    Last march I pointed to the compulsory license in case of unknown copyright holders in Article 67 of the Japanese copyright law as one possible model to deal with orphaned works while respecting the Berne Treaty at this blog post.

  • Max Lybbert

    With the “life of the author” rule, it becomes really hard to figure out which works are public domain, and which are orphaned.

  • http://bfccomputing.com Bill McGonigle

    On the surface, this is a good thing. The abandoned works now still protected by 1998 act could conceivably be available again.

    But you have to assume this is the complaint that Congresscritters receive most often about the Act. Having a mechanism to get around this problem removes a major objection to the continuing indefinite renewal of copyright on Mickey Mouse, et. al. Except for that pesky Article I thingamabob.

  • http://journal.terrania.us Robotech_Master

    Frankly, I don’t really care about Mickey Mouse. Let Disney have him. But let’s get the mouse out of the manger so that those parts of our cultural heritage that are slipping away can be preserved.

  • http://scrivenerserror.blogspot.com C.E. Petit

    Be careful before pulling out the “preserve our cultural heritage” argument, as it doesn’t reach the conclusion that so many seem to desire. The Copyright Act already authorizes mere preservation–”backup copy” for certain materials, as a single copy made for personal scholarly use, or under one of the library exceptions in � 108 (presuming, of course, that the preservation is being done by a “library”!). This is not the same thing as having the right to redistribute that preserved copy in the stream of commerce.

    I encourage preservation. I discourage using “preservation” and claims of “cultural artifact” to justify uncompensated reuse of material. (I also discourage perpetual copyright, but that’s for another time.)

  • blaze

    Regarding the LATimes article Lessig mentioned:

    “Clarifying the system, however, has been universally opposed by the content industry � Hollywood, book publishers and the like. It fears that any reform would weaken Congress’ resolve to strongly protect intellectual property.”

    This statement is completely missing those he thinks he’s trying to help. It is also opposed by independent artists who create content and don’t built substantially (except perhaps fair use) on the works of others.

    As for Google, yes, some clarity needs to come about whether or not what they do is fair use. It’s obvious to 90% of all copyright lawyers that it is, except I guess the ones that see problems where none exist. There will be a case, and I bet you it doesn’t even make it to a second appeal.

  • Joseph Pietro Riolo

    The Copyright Office does not ask a brilliant
    question. My feeling tells me that, given long
    history of the office’s collusion with the authors
    and artists, this is the office’s attempt to make
    the court case Kahle v. Ashcroft moot or irrelevant
    (“Your Honor, the Copyright Office is currently
    studying the problem. Please dismiss the case
    for there is no reason to proceed”). Secondly,
    this will make the future copyright term extensions
    more acceptable (as noticed by Bill McGonigle).
    If authors and artists want to extend term to life
    plus 150 years, that will be no problem because
    orphan works are already “taken care of”.

    To C.E. Petit,

    Authors and artists have responsibility in keeping
    the public informed of their claims in their works.
    But, once they forsake their responsibility, they
    deserve absolutely no sympathy from the public.
    They don’t have the right to keep their works
    locked for a long, long, long time but yet, that
    is what you apparently encourage. I call this as
    “Tragedy of Copyright”.

    Joseph Pietro Riolo

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Andrew Boysen

    At first I was thinking that the copyright office probably wouldn’t care to hear from me, because I have nothing that I care to protect, but then I realized that they would like to hear from me for exactly that reason. I wrote dozens of articles while in collge, and took about 10,000 pictures, which I shared in public folder for anyone from the college to use for whatever purpose they cared to (including several publications). I would much rather have my pictures and writings used and enjoyed that ignored, so I think I will take the time to write in. I encourage anyone else who has ever written anything or ever taken a picture to do the same.

  • http://orionrobots.co.uk Orion

    Exactly. What is the point in writting material that will never see the light of day. I am not simply saying that everything should be free. My work on OrionRobots is shared using the Creative Commons SA license – which means that if you are going to share equally any derived works, then fine – use my sources. But if you are out to capitalise on it I do expect to be contacted to negotiate remuneration or accreditation where applicable.

    Copyright that extends past the creators lifetime really only serves corporations and consortiums, and gives no real benefit to the original creators or the public. It does not spurr innovation. I think it should expire on the day the creators will is enacted.

  • http://www.robmyers.org Rob Myers

    This statement is completely missing those he thinks he’s trying to help. It is also opposed by independent artists who create content and don’t built substantially (except perhaps fair use) on the works of others.

    That’s an interesting claim. Please substantiate it. Because I don’t see how clarifying the status of orphan works from early in the last century years ago affects today’s poor “independent artists” that you are trying to hide the content industry behind.

    Musicians don’t agree with your take on IP:

    Musicians ‘unconcerned’ about file sharing

    So you don’t have to defend them. And this isn’t just about music, it’s about books and movies as well. But the RIAA have spewed the most propaganda around this, so you can ride their coat-tails if you like.

  • http://www.gavinbaker.com/ Gavin Baker

    The students at FreeCulture.org have created a Web site to encourage people to comment:


    Florida Free Culture