Two years ago, Representative Smith tried unsuccessfully to craft a bill that would deal with the issues. Now the effort is being undertaken anew. I blogged about it at Collectanea earlier today and would refer our readers there for links to other sites that are registering their optimism and concerns. A new bill has not yet been introduced, but it is reportedly going to be introduced as early as this week.

Google sponsors meetings of all of the library partners, and at our meeting in July in Ann Arbor, U Mich talked about its effort to augment Google’s public domain (pd) determinations with additional research of its own to move the U.S. pd date line from 1923 to whatever date really applied for individual works, based on either their renewal or non-renewal (for works published between 1923 and 1964), or their government works status (no protection at all). We here at UT were very excited about this effort (which I have greatly simplified here). In my role at UT’s Libraries, I had been looking for projects that might blend my existing copyright expertise with my evolving interests in the future of libraries in a networked world, and this seemed to fit the bill. Se we jumped in with both feet. We were lucky enough to get Maria to help us, with her extensive knowledge of the Benson and the ability to design a data collection database for us. We are about to test some of Michigan’s pd determinations for them, to confirm their process, or help them to tweak it if need be. So, we are just about ready to start our own data collection, to begin making pd determinations for our many foreign works, and right away we hit a big, big snag.

U.S. copyright law is complicated enough. I’ve always been horrified at how complicated it is. Check out the link in our sidebar called “Flow chart.” It shows in flow chart form how to make pd determinations for U.S. works. But that is nothing compared to the charts Maria began producing for us that showed the flow for pd determinations in some of our foreign jurisdictions. Geez. As I began to see these, I immediately started looking for a way out of what seemed like a totally NOT SCALABLE process. Of course, there is a way out, because we are in the U.S. Our law gives a set term of protection to foreign works that were not published here (many of which works, until 1996 GATT, were pd in this country for failure to comply with our requirements to use copyright notices and register renewals, etc.) — it’s 95 years from the date of publication. We had originally thought that we should establish pd status for the work in its country of origin, in addition to establishing the status for the work here in the U.S. But as I began to see how complication had been raised to an art form in some of these foreign jurisdictions, I began to realize that we probably could not offer anything of use for those countries, but discouragement. It’s not just that their statutes are, like ours, seemingly designed to obscure public domain status. Rather, it’s the proliferation of presidential proclamations, bilateral and multi-lateral treaty declarations, and difficulty in determining the relationship of such add-ons to the statutes themselves, that made the job of saying what the pd status of a work in its country of origin might be, just too impossible. One has to practically be an expert on U.S. copyright law to opine about pd status in this country. It’s just not practical for someone who doesn’t even speak the language to try to interpret foreign laws and come up with a pd determination. So, this is a big gap that we are not likely going to be able to effectively fill for our foreign works.

That’s not to say that we won’t contribute what we learn about our works to the public for its use. It’s just that we won’t likely be able to come to a determination in many, if not most, cases.

Next time I’ll talk about the “rule of the shorter term,” a Berne Convention mechanism that, for most Berne countries, allows use of the shorter term to determine pd status when two or more jurisdictions are involved in a use.

Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings — in short, any work protected by copyright — whose owner cannot be determined, located, or who does not respond when contacted. We have always had orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time. The need to exercise the rights of the copyright owner, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. Not so today. Now, because of the drive to digitize library, archive and museum holdings, and offer access to them to as broad an audience as we can, the orphans will suffer a fate equal to death — the obscurity resulting from their inability to be “permissioned,” digitized and displayed.

As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable. The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement. These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what’s going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very brave librarians will take this risk and digitize and display them.

And, I believe, that’s just what we have, cautiously brave librarians.

The photographers’ successful campaign to destroy the chance for effective Congressional legislation regarding orphan works, to which I referred in earlier sections, draws the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 – 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can’t determine the author, you can never know when such works enter the public domain. The obscurity we consign these works to is not a temporary condition. It is forever. The cost of doing nothing has become unacceptably high.

Without legislation reducing the enormous penalties for being wrong, there is considerable pressure to get the “reasonable search” for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. Librarians are beginning to build an evidence base, at first dedicated to freeing the books that are in the public domain, but not currently properly identified as such. But next in line are the orphans. The routine we engage to determine whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, where are his heirs, whether a publisher is out of business, where the last place of business was, and on down the line. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular book’s publisher’s disappearance identifies not just one orphan book but every book that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs identifies as orphaned every book she ever wrote. So it is important to publicly conserve this evidence and rebuild not only our public domain, but identify our orphan works. Slowly but surely, librarians will put together the evidence we need to feel confident that, even facing draconian penalties, we can reduce the risks to manageable levels.

There is additional evidence that other risk-averse institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance’s (OCA) annual meeting (2007) to take the next step with a pilot-project that will “start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date.”

Brewster could be standing shoulder-to-shoulder with Google in relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. It’s not clear from the hangingtogether.org meeting notes, but if Brewster is venturing into making orphan works available, he would be grappling with the same issue described above — establishing the contours of the reasonable search that establishes the fact of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.

Here again, however, the sad consequence of Congressional paralysis is looming copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, “[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights — and limitations on those rights — to promote the progress of science and the useful arts,” turned out to be dead wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents’ concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law. And its ultimate irrelevance. Isn’t this too high a price to pay?