Shaky Assumptions in the Orphan Works Bill - An Author's Take on the Public Domain Enhancement Act (H.R. 2408)

When people ask what I do, I like to say I’m an author. Accordingly, the proposed Public Domain Enhancement Act has particular relevance for me. The bill addresses the problem of orphan works, or copyrighted works whose owner(s) cannot be found. The U.S. Copyright Act of 1976 eliminated registration and renewal formalities, resulting in a system where protection arises automatically. The term of copyright protection has also been escalating; it’s currently the life of the author plus seventy years. Many creators have abandoned their works or croaked – but their orphans remain under copyright protection. It’s a tear-jerking story – these works can’t enter the public domain and be adopted by innovators. H.R. 2408 interprets the copyright clause in article 1, section 8 of the U.S. Constitution as striking a balance between the rights of authors and the rights of innovators who wish to incorporate copyrighted works.

As someone who pens books, both aspects strike a chord with me. On the one hand, it’s important that I have control over my self-expression. I wouldn’t put thousands of hours into my writing if the results weren’t copyrighted under my name. This entitlement opens up potentially vast sources of income; I receive royalties from book sales, and I’m compensated for the film, audio, and foreign rights.

On the other hand, the second purpose addressed in the bill – the free flow of information for public use – is as meaningful to me. When I finally write a ten-volume History of my Ancestors, I may wish to publish a letter from my grandfather’s opium dealer. In all likelihood, I won’t be able to track down the pusher or his descendents to ask for permission. I’m averse to lawsuits, so if the current copyright law hasn’t changed, I’ll have to throw up my hands and rant about being creatively stifled by the Man. Bah.

From an author’s perspective, I think it is valuable to have works available in the public domain – often, more so than the works themselves. Chick lit is the bane of my existence, and in ten years, it’s likely that Bergdorf Blondes will disappear from bookstores (fingers crossed). But down the line, I can see the value of a sociological study of Lauren Weisberger’s oeuvre. Creative works reveal a great deal about our society and zeitgeist. My children may learn something if passages about Pilates and Manolo Blahniks are included in their history textbooks.

My beef with the proposed bill is that it rests on a false premise – that the long term of copyright gives the author an economic incentive to create new works. My friends profess that they write out of love – ah, l’art pour l’art! But I’ll admit that I’m a self-interested profiteer. I write marketable books, and I wouldn’t put as much energy into my writing if Joe Shmoe could reproduce and disseminate it after a few years. But for authors, the main economic incentive doesn’t derive from the copyright. Rather, we seek elephantine advances. We publish so that we can pay our long-due utility bills; we’re not concerned with whether we’ll receive royalty checks fifty years from now. And because of the fickle public and unpredictability of hits (nobody expected Marley and Me to be a blockbuster), creators can only count on short-term rewards for releasing new works. A musician can write songs that will get radio spins today, but he has no clue what will be popular in half a century (Scott Joplin couldn’t have conceived of electronica and hip hop). Even bestsellers are unlikely to maintain strong sales. Works go in and out of vogue faster than ever; in ten years, the dog book is more likely to be in the 99-cent bin than on the list of Great American Texts.

Another shaky assumption is that if a work remains commercial (such as Huckleberry Finn), then the copyright owner will wish to maintain ownership of the work. But Mark Twain’s ghost has an interest in having his books in the public domain – even if this means sacrificing royalties. It’s a great honor to be studied at Yale, analyzed by Andrew Morton, incorporated in a MoMA installation. To be included in Dover Thrift Classics – why, that’s akin to literary canonization. Authors are unlikely to cling to the copyright of their still-profitable works in the long term; after all, Mark Twain’s ghost can’t buy a Lamborghini. Down the line, the money incentive gives way to the lure of legacy.

It’s also in the interest of long-forgotten, penniless authors to put their creations in the public domain. As time passes, works tend to lose their footing due to changes in technology and understanding; ye olde English plays and kinetoscope films are no longer our weekend diversions. Such works are not commercially viable in their original form, but they may be resuscitated when they are re-interpreted or adapted in a new medium. A corny photo of great-aunt Edna may become the next popular Hallmark humor card. The long-dead photographer may have never received a cent for the snapshot, but irony gives it second legs. Wouldn’t he prefer this to being lost in a pungent, yellowed scrapbook?

It’s in the interest of creators of all stripes to increase the number of works available in the public domain. At the moment, orphaned works are a hindrance to innovation. It’s likely that no-one will complain if you make a poster-size blow-up of great-aunt Edna’s headshot. But it’s a different story if the work is of historic import, such as a gushing fan letter to Abraham Lincoln. Hunting for the copyright owner requires a great deal of time and resources, which are usually in short supply. If the artist does not find the owner, she may decide to use the love letter anyway. If later challenged, she can argue for fair use, perhaps for an educational purpose. However, the artist is still potentially liable because she did not lawfully license the document. The current copyright law is a sword hanging over the heads of innovators, who have to choose between risking legal action and leaving out orphaned works that would heighten their creations.

In light of this dilemma, the Public Domain Enhancement Act is a step in the right direction. The proposed length of time before abandoned creations enter the public domain – fifty years – is reasonable, taking into account the average lifespan of an author and a work’s commercial viability. The nominal fee and electronic submission process make maintenance as painless as possible. And the act is wisely limited to U.S. copyrights; we don’t want to increase tensions with the French by turning André Breton’s surrealist poetry into a free-for-all.

I’m a fan of the proposed bill, but I’d make two recommendations. First, the public must be thoroughly informed about any and all changes. Copyright terms are convoluted enough as it is, and if the new procedures are not spelled out, then complacent copyright holders may be in for a nasty surprise. Furthermore, the bill’s purpose is defeated if creators do not realize they can now innovate upon certain works. If a copyright is not maintained, but nobody knows that the work has become available, then is it truly in the public domain? Hmm…

Second, it’s important to know the original author’s intent. Fifty years from now, most of today’s creators will be in their graves. The heirs may assume that if a work is no longer saleable, then it may as well be released into the public domain. But commercial value is not the only gauge of a work’s worth. Artists are notoriously weird. A sculptor may be fanatic about keeping control of his inukshuks, even if he’s dead and they haven’t sold for decades. The beneficiaries must consider the artist’s desires with regard to maintaining the copyright – independent of whether the work has market value. If not, they risk being haunted in their sleep by the artist’s tortured ghost. At the very least, they wouldn’t be respecting his wishes.

Orphaned works are a major hitch in copyright law. Like a festering wound, the problem must be addressed before an entire limb requires amputation. New works increasingly rely on digital technology and the incorporation of orphaned works; electronica tunes and documentary films, for example, frequently build upon older material. It is urgent to pass a bill such as H.R. 2408 so that innovators may use orphaned works without hurdles. The Public Domain Enhancement Act makes several excellent suggestions for reform. However, legislators must rethink the overly-simplistic economic premises cited in the bill. They should not assume that if a work has commercial value, then the original author will wish to maintain the copyright, and vice-versa. Otherwise, the bill will not truly be in the interests of the individuals it seeks to protect.

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