Move to help copyright 'orphans'

Wired on Friday: Won't somebody think of the orphans? That's the cry that went out from US congress senators Orrin Hatch and Patrick Leahy last year, when they asked America's copyright office to investigate the phenomenon of "orphan works".

Orphan works are films, books, illustrations, sound recordings and other creations that are copyrighted by somebody, somewhere - but for which it is impossible to uncover exactly who.

The life of orphan works is precarious: if no one knows who owns the copyright, no one can legally make copies of the work. And without being able to make a copy, celluloid prints decay, sound recordings fade, and books moulder away.

You can't reprint a classic if you don't know who to ask; you can't ask for permission to reproduce a painting if the painter has long gone, and no one knows who their next of kin is. If you don't already know the copyright-holder of a work, returning it to widespread distribution is a tortuous, expensive process.

Copyrighted works do not have to bear any mark of who owns them. When works aren't the product of an individual, such as a film, it can be difficult to see who owns the copyright, even if the creators are named. Of course, copyright can be bought and sold just like any other property right.

Quite apart from the damage to the overall culture, the US has another reason to cast a fresh eye over the orphan problem. These days, there are profits to be made from even the most obscure creations.

With Amazon and iTunes selling vast back catalogues and making money even on works that sell just one or two copies a year, re-animating classics that would never survive in previous decades makes business sense.

As in so many parts of copyright, it's not just businesses or academic institutions that hit the orphan works issue: individuals are increasingly running into comparable problems.

In the US, photograph reproduction companies often refuse to print pictures if they look "too professional", for fear that family snapshots might turn out to be taken by a paid photographer who owns the copyright, and therefore could sue the photo lab for damages.

The copyright office has now released its mullings on the problem. It seems to have been taken aback by the popularity of the cause: around 850 individual submissions identifying an orphan work problem were submitted, from webmasters struggling to include old pictures in their website, to Carnegie Mellon university, which discovered during attempts to digitise its library collection that 22 per cent of the publishers could not be located to ask permission.

The 200-page document makes a single recommendation: an amendment to existing copyright law that limits legal penalties to anyone who infringes a work when they made a diligent but unsuccessful effort to uncover the rights-holder.

If a rights-holder sues the copier, monetary damages would be restricted to what the court thought would have been paid in a reasonable negotiation. Also, the power of the copyright-holder to sue to stop the distribution of a new work based on their original would be reduced.

So, a company that makes a film based on an orphan work could still continue to distribute and sell that film, even while the court decides how much to pay the original author if they emerge.

Will other countries follow the US on orphan works? It seems likely they will; it is one of the first countries to examine the issue, and, as the major intellectual property exporter, the richest and most powerful advocate of strong copyright among those who negotiate such legal rights.

Like the US decision to permit home recordings of TV shows spread to other nations, this orphan works amendment, if accepted, will become the basis of law in other countries.

But ironically, the increasingly forceful position taken by the US could undermine its government's willpower to take on this novel task. Many of the strongest advocates for copyright in the US have taken an increasingly ideological bent, suggesting copyright, and all intellectual property rights, should be treated in the same way as physical property rights.

For most business arguments that makes sense, at least for the rights-holder. Real property doesn't suddenly pass into the public's domain after a few years, so extra-long copyright regimes are preferable.

Other people don't have the right to use your property the way they want to, and so it should be that you can completely control how your customers use your television programme, book or song.

So, under this theory, orphan works can't be adopted by others, just because there's a possibility of making money or improving the public good. That would be tantamount to "squatter's rights" on apparently abandoned property.

The greatest issue perhaps with the orphan work initiative is the same as the real orphans. While everybody cares about them, nobody may quite care enough to fight for them. Copyright was already a complex world of trade-offs and compromises. Will the initiative complicate or simplify the law?

And will it be enough to encourage the development of the abandoned, shanty towns of unexploited content at the edges of culture? Or will we remain content with exploiting as much as we can our existing intellectual property, in the small turf of what we know, and who we know?