Orphan Works

I am a fan of the legal blog, Scrivener’s Error. I don’t entirely agree with everything the author believes, but I like the author because he provides a voice that is often lacking: the perspective of an author advocate, and because unlike a lot of other bloggers he explains why he thinks the way he does in a very coherent and logical manner.

Here’s one of the I disagree with somwhat, on Orphan Works.

Let’s look at the first situation. “One of the most common excuses offered for the ‘need’ to allow unlimited republication of orphans is to avoid losing material from the public record. There’s a word for institutions that do this kind of thing routinely: Library (or, I suppose, Museum). Preservation is not linked to redistribution.”

Here’s one of those cases where I completely disagree, and something I do actually know a little bit about. 😛 There are exemptions for libraries and archives to make copies for preservation purposes. However, knowing when one can make these copies isn’t as simple as one might think. One, preservationists and conservators are undervalued and underutilized. Two, librarians and archivists in many cases don’t have the expertise necessary to preserve items or to determine the legal aspects necessary to begin the preservation process. Three, libraries and archives and museums don’t have the resources to preserve a great deal. Four, and here’s the kicker: copyright law is such a pain in the butt, that due to the limited resources of libraries librarians often won’t act to preserve something unless it’s in the public domain or the library has explicit permission to reproduce it. There are lots of reasons for this behavior. They don’t even want the risk of a lawsuit. More importantly, if they are going to be using their limited resources, they’re going to be using their limited resources for materials that more people can use rather then something they can make a preservation copy of, but not many can access.

He states that “admittedly, some kinds of media are subject to loss if not preserved; film, in particular, is proving far less robust than paper.” No kidding. In general, newer paper lasts far shorter than older paper because of the way paper is created now. And when we move digital media, the situation is actually worse, not better. Microfilm is far more stable than CD or DVD information, but the laws on the copying of digital information are even more stringent than copying their analog equivalents.

At any rate, I’m planning my dissertation, and I believe it will be about the effects of copyright law on the missions and behaviors of cultural institutions such as libraries and museums. It’s possible that research will show that I’m wrong in my assumptions- but all anecdotal evidence I’ve gathered so far certainly points to the library exemption not being sufficient for items to disappear from the public record. Now, the ability to copy also does not guarantee that a work will be preserved, but it certainly makes it more likely that it will be.

His second “fallacy” (and I’m using the quotes there for a reason :P) appears to be an over simplistic explanation of economic arguments against the current length of term of copyright, although he states that it isn’t over simplistic in his footnotes. 😉 The way the argument is set up seems, to me, to be a straw man. I would like to see the original argument that he’s quoting, because I have heard similar arguments that aren’t nearly as flawed as the way it’s presented in the blog entry, and he says that the transcripts will be available, so I’ll be looking for ’em.

The first underlying assumption he appears to make, I think, is that if a work has economic value to an author at any point in time then that is an argument for it to be protected by copyright (although he could just be arguing against the extremes presented by the logic he’s presenting). That area is certainly where people disagree- the copyright term. At what point is the benefit to the author outweighed by the public good?

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