Beware the Law of Unintended Consequences.
We have spoken in this space before about our broken copyright system -- about how it favors corporations over individuals, suppresses creativity, and has failed to reflect the changing technological landscape of our culture. But some of the worst problems caused by our antiquated copyright laws were borne from the best of intentions.
Take, for example, one of the changes made to U.S. copyright law in 1976. Before that year, a work had to be published and had to bear a copyright notice to be considered protected by copyright. But in 1978, the law was changed so that a work merely had to be "fixed," not published - meaning that as soon as a creative work emerged from the pencil, paintbrush or piano of an artist, it was protected. This remains the law today.
To most artists, that seemed like a wonderful change at the time. Every time a would-be author sent a manuscript to a publisher during the previous decades, there was a remote chance that his or her book could be stolen, but thanks to the Copyright Act of 1976 (which wasn't enacted until two years later, in 1978), there were now ways to protect that work.
Meanwhile, over the years, there were other changes being made - changes that lengthened the period of copyright protection and made it unnecessary for a copyright owner to renew his or her copyright. Combined, all of these changes have resulted in a terrible problem today: The problem of "orphan works."
An orphan work is a copyrighted work for which the copyright holder cannot be located. During the 35 years since the 1976 act became law, the libraries, museums and film repositories of the world have become filled to the rafters with orphan works. (A 2009 Joint Information Systems Committee study suggests there are some 25 million orphan works in U.K. libraries and collections alone!) These are novels which can never be read... motion pictures which can never be seen... songs which can never be heard... photographs which can never be digitally archived or used in a Ken Burns documentary.
The U.S. Copyright Office's official position is that "[f]or good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace." But in many cases, they represent something much worse than that. In those instances, orphan works are a cultural tragedy occurring in slow motion. There are orphaned films, for example, that are literally disintegrating in the hands of archivists unable to mend them for fear of being sued. In some maddening examples from the music world that would have made even Kafka scoff, the original artist of a song is known, and he or his heirs are still around - but because the copyright on the song was owned by the record label, which was later sold to another record label, which was subsequently sold itself, etc., no one knows who holds the rights any more. The song cannot, therefore, be legally re-released.
Next week, we'll look at some of the solutions to the problem of orphan works which have been proposed in recent years... and why those solutions have been the subject of bitter debate. As you'll see then, taking care of the orphans can be a complicated affair.
Craven Lovelace produces Notes, a daily cultural history of popular music, for KAFM 88.1 Community Radio, kafmradio.org. You can visit cravenlovelace.com for more of his musings on the world of popular culture.