[ARSCLIST] Orphan Works Inquiry and Recordings

[Tim Brooks <Tbroo@xxxxxxx>]

As some of you may know the U.S. Copyright Office, at the request of 
Congress, is conducting an inquiry into whether copyright law should be modified to 
allow the use of "orphan works"–copyrighted works for which an owner can't be 
identified, but which are not being used because a user risks substantial 
penalties should an owner later turn up.  This certainly describes a lot of older 
recordings. 

The Copyright Office seems sympathetic to the problem, as reflected in its 
notice of inquiry at http://www.copyright.gov/fedreg/2005/70fr3739.html.  
Comments were invited (the deadline was March 25), and more than 700 were received.  
They're fascinating and range from screeds, rants and personal examples to 
formal briefs by major organizations, and are worth checking out.  They are 
numbered in the order received and can be viewed at 
http://www.copyright.gov/orphan/comments/.  

Predictably ASCAP (comment #628) and BMI (#640) think there's no problem at 
all, and want music totally excluded from any copyright changes.  Libraries, 
user's rights groups and practically all the "little people" want changes made, 
possibly something along the lines of the Canadian user registration system 
(although not everybody's happy with that).  Surprisingly the MPAA (#646) and 
RIAA (#687)–the people who are currently suing everybody over downloading–do 
advocate some changes since their own members encounter difficulties using old 
music, concert footage, artwork in packaging, etc.  They think there's no 
problem with recordings however.

The Association for Recorded Sound Collections did not submit a filing 
because it moves slowly and does not yet have a formal position on copyright (my 
committee is going to try to develop one over the next few months).  However I 
filed a fairly detailed personal comment regarding recordings (#579), using data 
from the study presented at the recent ARSC Conference, and made the case 
that older, pre-1972 orphan recordings should be covered too, even though most 
are currently under state law.  Even though they might not strictly fall under 
federal law as it's currently written, I think the issue of the widespread 
legal suppression of older recordings in the U.S. needs to be brought to the 
attention of regulators and legislators in every possible forum.

An interesting filing is that of the "Recording Artist Groups" (a coalition 
of AFM, AFTRA and the Future of Music Coalition), #669.  They maintain that the 
Copyright Office should be looking at OUT OF PRINT recordings too, not just 
"orphaned" ones.  Their members lose a lot of income when record companies 
demand all rights as a condition of recording, then withdraw or refuse to issue 
(or allow anyone else to issue) the recordings made.  They want the artists 
themselves to be able to release these recordings via a compulsory license, if the 
recording is out of print for more than two years.  Good luck getting that 
past the big record companies!

The Copyright Office is accepting responses to the comments received, until 
May 9, at http://www.copyright.gov/orphan/.  I encourage anyone interested in 
preserving older recordings to view this debate, and submit your own response 
to a filing.  They need to hear from us.

Tim Brooks
ARSC Copyright and Fair Use Committee
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