Everybody talks about the orphans. But no one does anything to help. At least, yet.
That's "orphans" as in "orphan works," the problem of artistic material that was once copyrighted, but the copyright holders of which can no longer be found. We've been discussing this problem for the past couple weeks in this space, and it's a serious problem, with grave ramifications for our cultural history.
MaryBeth Peters, a former U.S. Register of Copyrights, recounted how "...[i]n testimony before the House, the U.S. Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that it and other museums cannot publish or digitize" as a result of their orphan status.
We've also looked at how Google and other institutions have tried to address the orphan works problem, and how their efforts failed when it was perceived as an end-run around copyright protection. But theirs is not the only plan put forward in the past decade.
Three bills were introduced in Congress to address the problem between 2006 and 2008, but withered under an avalanche of negative publicity fueled especially by photographers' and artists' groups who were worried the proposed legislation would weaken their own protection. These bills would have required a publisher who wished to use an orphan work to make a diligent search for the copyright owner, but would have subsequently indemnified the publisher if a copyright holder eventually came forward.
Canada and a few other countries have dealt with orphans in a different way. There, a publisher can (after searching for the copyrighter holder) petition a government board to use an orphan work under a non-exclusive license. This works well in the case of companies that want to license a work on a one-time basis for commercial purposes, but falls apart when the institution in question is a library or museum wishing to disseminate sometimes thousands of historical documents.
You might think these latter examples would fall under "fair use" exemptions, and indeed, some 60 major universities, libraries and museums have proceeded under that assumption by forming the HathiTrust Digital Library to make historically important orphan works available. But the HathiTrust was sued by the Authors Guild, and while it won round one when a judge found its use of orphan works was indeed fair use in October, the Authors Guild is expected to appeal.
There are other approaches to dealing with orphans, but here in the United States, nothing is going to change without congressional action. And given that our national legislature is more divided and paralyzed than at any time in our history, and fighting savagely over more emotional "hot button" issues like the regulation of firearms and economic recovery, it remains to be seen if the orphan works problem will see a solution any time soon.
Until then, there are pictures we cannot see, stories we cannot read, movies we cannot watch and songs we cannot hear. They are the hostages of a copyright system that has maximized intellectual property value for media corporations to the detriment of our country's cultural history.
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.