[License-discuss] Orphan Works: Summary of proposed 17 USC 514

Lawrence Rosen lrosen at rosenlaw.com
Mon Dec 7 20:44:06 UTC 2015

Henrik Ingo wrote:

> But you're right that they also stand to gain from co-opting orphaned works and then including them into new, copyrighted productions.


The term "co-opting" is out of place. Here is the constitutional view:


As the Supreme Court reaffirmed in 2012, facilitating the dissemination of creative expression is an important means of fulfilling the constitutional mandate to "promote the Progress of Science" through the copyright system. This Report addresses two circumstances in which the accomplishment of that goal may be hindered under the current law due to practical obstacles preventing good faith actors from securing permission to make productive uses of copyrighted works. First, with respect to orphan works, referred to as "perhaps the single greatest impediment to creating new works," a user's ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner. Second, in the case of mass digitization – which involves making reproductions of many works, as well as possible efforts to make the works publicly accessible – obtaining permission is essentially impossible, not necessarily because of a lack of identifying information or the inability to contact the copyright owner, but because of the sheer number of individual permissions required.


Orphan Works and Mass Digitization <http://copyright.gov/orphan/reports/orphan-works2015.pdf> , Executive Summary, page 1, first paragraph.






-----Original Message-----

From: Henrik Ingo [mailto:henrik.ingo at avoinelama.fi] 

Sent: Monday, December 7, 2015 12:03 PM

To: license-discuss at opensource.org

Subject: Re: [License-discuss] Orphan Works: Summary of proposed 17 USC 514


On Sat, Dec 5, 2015 at 10:02 PM, Michael R. Bernstein <michael at fandomhome.com> wrote:

> On Fri, Dec 4, 2015 at 7:19 AM, Henrik Ingo 

> <henrik.ingo at avoinelama.fi>

> wrote:

>> This is interesting indeed. This is so unusual that I have to ask:

>> what is the political context that has given rise to such a proposal 

>> that would make copyright law more sane, where usually all lobbying 

>> effort is towards more and longer restrictions?



> My layman's perspective on that question is that:


> Orphan works owners by definition do not have a lobbying effort Large 

> holders and producers of copyrighted works will now be able to 'mine'

> orphan works for adaptation with little danger, creating new works 

> that they can aggressively defend, and possibly will aggressively 

> discourage others from making competing adaptations that are 'too 

> similar'. That knife cuts both ways, but it is a game Hollywood is 

> familiar with and very comfortable playing.



Ah right, that makes more sense. I was looking at this with the assumption that any legal content not controlled by the big producers is competition, so that they would have a motive to be against any copyrighted works ever entering the public domain. (Similarly you can often hear copyright lobbyists speaking out against perfectly legal things like Creative Commons, because it's just wrong that you're not paying them.)


But you're right that they also stand to gain from co-opting orphaned works and then including them into new, copyrighted productions.





henrik.ingo at avoinelama.fi

+358-40-5697354        skype: henrik.ingo            irc: hingo



My LinkedIn profile: http://fi.linkedin.com/pub/henrik-ingo/3/232/8a7


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