decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

A Proposal to Solve the "Orphan Works" Problem
Saturday, March 26 2005 @ 10:26 AM EST

The Copyright Office has been holding hearings on access to "orphan" works.  These aren't movies about kids who have lost their parents -- Little Orphan Annie, say.  They are works which are still under copyright but have no copyright holder (or no locatable copyright holder.)   It might sound esoteric, maybe even boring, But it isn't. Here's why I think it matters.

"Orphan works" probably comprise the majority of the record of 20th century culture,  and their orphan status means we have practically no access to them. 

In all likelihood no copyright owner would show up to object if one digitized an old book, restored an orphan film, or used an obscure musical score.  But who can afford to take the risk?  The normal response of archivists, libraries, film restorers, artists, scholars, educators, publishers, and others is generally to give up -- it is just not worth the hassle and risk. 

The result?   Needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication. And all of this waste is entirely unnecessary.

Is there any solution?  Duke's Center for the Study for the Public Domain has produced a report to the Copyright Office that offers one.

They interviewed artists and librarians and filmmakers about their problems, and they offer a proposal on how to fix the system so it works. Actually, they've offered two proposals, one for Orphan Works and one for Orphan Films, both pdfs. The conclusion of the Orphan Works proposal reads, in part, like this:

The orphan works problem is so tragic because it denies access without producing incentives. It undercuts the constitutional goals of the copyright scheme, hurts libraries and archives, presents the new generation of authors and innovators with obstacles rather than solutions, and condemns large swathes of culture to literal physical destruction. Yet it does all this harm while actually serving authors very poorly. We believe our analysis of the orphan works problem indicates its magnitude and severity, and we are grateful to have been accorded the opportunity to put forward a proposal to solve it.

They list 7 features that they believe any solution to the problem must include: Clear Guidelines, Low Levels of Required Search (Perhaps Specified According to a Few Context Sensitive Classes), Broad coverage, Efficient Administration, Notice, Safe Harbor, and Protection of Value-Added Restorers and Reusers. The last point, having a search and notice process, is elaborated on like this:

Many users will be satisfied with a solution that allows them to use orphan works securely after a defined search and notice period. If a copyright owner subsequently appears, immunity based on a cessation of the challenged use will suffice. But for those users who plan to invest substantial hours or dollars in restoring, changing or adapting an orphan work for the future, this solution will not be adequate. It is small comfort, after thousands of hours or dollars have been spent digitizing a fragile film, to be told that if one stops and hands over one’s work, no action will be brought. Indeed, such a system would encourage “submarine orphan works” –- copyright owners who lurk and wait until value has been added by a second-comer, before announcing themselves. In order to give improvers the security they need, a second option must be provided – one that allows continued use on payment of a specified, low royalty.

It's a rational, well thought-through proposal, with the intent of providing fairly for all parties, and I hope you have a moment to read it. You may have other ideas of your own to amplify or tweak the proposal.


A Proposal to Solve the "Orphan Works" Problem | 147 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Easy Solution for Orphan Works
Authored by: Anonymous on Saturday, March 26 2005 @ 10:49 AM EST
Require periodic registration of the copyright say every ten years for a minimal
fee. Failure to maintain registration voids the copyright and puts the work in
public domain. The ten year period is long enough that voiding GPL works would
have little or no effect.

George Wood

[ Reply to This | # ]

OT Here
Authored by: rm6990 on Saturday, March 26 2005 @ 10:49 AM EST
OT Here Please

[ Reply to This | # ]

Related links to orphan works problems
Authored by: cjovalle on Saturday, March 26 2005 @ 10:55 AM EST
Unfortunately, the public comment period has passed, but these websites have more information:
Orphan Works
Public Knowledge"

[ Reply to This | # ]

Corrections Here Please
Authored by: LarryVance on Saturday, March 26 2005 @ 10:56 AM EST
Corecktions pleze!

Larry Vance

[ Reply to This | # ]

Does Coherent qualify?
Authored by: Anonymous on Saturday, March 26 2005 @ 10:58 AM EST
Coherent was a UNIX like OS made by the Mark-Williams companies. Twelve years
ago, it was very similar to SCO UNIX.

Except Coherent was affordable, only $99. It only took 10MB of HDD space, and it
ran fast on a 386SX. It was a cinche to setup and use. Coherent came on ten
floppies, no cdrom needed. Coherent came with a massive and well organized

Coherent lacked a TCP/IP stack, and X-Windows. It seems Coherent couldn't
compete with Linux; and the project was abandonded.

[ Reply to This | # ]

PJ, the "report" and 'Orphan film" links do not work
Authored by: Anonymous on Saturday, March 26 2005 @ 11:19 AM EST

[ Reply to This | # ]

Orphan Computer Programs
Authored by: rsteinmetz70112 on Saturday, March 26 2005 @ 11:23 AM EST
There is already a problem with orphan computer programs.

Often in the early days of micro computers programs were distributed very
informally on often fragile media. Now people seeking to use and preserve the
early days of micro computers face all kinds of hurdles making archive copies of
programs to preserve and them. Sometimes the copyright owners cannot be located
or the ownership has passed through so many hands the actual ownership cannot be
determined. Sometimes the owners for whatever reason refuse to give permission
long after there is any valid economic reason.


"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

An additional two proposals...
Authored by: Dr.Dubious DDQ on Saturday, March 26 2005 @ 12:38 PM EST

This obviously doesn't do anything about (for example) giant multi-national corporations that will likely exist for centuries, churning out many works (many based on public-domain material or otherwise derivative) and keeping the material locked up for the duration of the US's incrementally eternal copyright restrictions. It's obvious there's no way we're likely to see this change any time soon, but I keep wondering if it might be possible to reduce the impact someone and encourage corporations to allow some of their work to mature into public domain material.

I've seen numerous people suggest a recurring copyright renewal fee to identify works that a copyright holder no longer cares about. I would suggest going one step further as some have suggested, and have the recurring fee increase every time. That way works that are STILL "being used" by the copyright holder [i.e. still in commercial release] can retain their copyright restrictions, while companies are discouraged (but not outright prohibited) from simply locking up material forever so that nobody can see it again - e.g. Disney's politically-incorrect "Song of the South"[1]. An earlier poster in this story suggested the initialf 10 years be free of charge and automatic, after which the fees would start. Sounds good to me...

The other suggestion is to allow corporations to treat the release of materials into the public domain as "charitable contributions". Is this already possible, or is it currently too difficult to estimate the value of such a contribution to make it an attractive option for corporations and other copyright holders?

[1] - it LOOKS as though "Song of the South" is actually available outside of the US, but not in "region 1". I can't tell if the "converted" disks that appear to be available via the internet are even legal.

[ Reply to This | # ]

OT: THG Interviews: 5,000,000 hits?
Authored by: SilverWave on Saturday, March 26 2005 @ 12:41 PM EST

Great artical PJ

One question: Is the qouted 5,000,000 hits a day correct!

If so Wow!

Oh and any one know SCO's numbers?

"While PJ is modest about the popularity of the site, current estimates
show Groklaw getting nearly five million hits a day."

"They [each] put in one hour of work,
but because they share the end results
they get nine hours... for free"

Firstmonday 98 interview with Linus Torvalds

[ Reply to This | # ]

Science Fiction Writers of America proposal
Authored by: HenryMelton on Saturday, March 26 2005 @ 12:47 PM EST

Here is the proposal that I like the best, put together by people passionate about protecting their own work and about letting older works get back out into th public eye.

http:// rphan.htm

[ Reply to This | # ]

old computer games (1970s)
Authored by: Anonymous on Saturday, March 26 2005 @ 01:04 PM EST
one of the things I've been trying to do, is bring back some of the old computer
games from the 1970s.

copyright is long gone, so are the people, most of them have died. and nobody
knows what happened to the rest.

I spent decades trying to track down people, some cases I have the code, and
there is no notices on it, so what to do?

in most cases after doing so much work, I've given up and gone ahead and
recreated the code and even posted it publically. I figure after decades, and
leaving my postings for another decade or more after that, if someone is going
to complain they should have by now.

but the biggest problem i've come across is apathy by people in the community.
no one seems to care that all this stuff is being lost, old technologies and

people just dont give a damn. and its sad really.

[ Reply to This | # ]

A Proposal to Solve the "Orphan Works" Problem
Authored by: HenryMelton on Saturday, March 26 2005 @ 01:29 PM EST
Having read the proposal, and especially comparing it to the SFWA's proposal,
it is clear that the Duke proposal is entirely one-sided on the subject of
protections. The new user is given every advantage, and even protection
greater than the original copyright owner.

In addition, the only protections in the proposal appear to be safeguards
against copyright owners 'gaming' the system.

Compare the SFWA's proposal of multiple five year grants vs. the Duke's
proposal to grant the new user unlimited use. Also notice Duke's
suggestion of a set percentage of profits as a default usage fee, opening the
door to wholesale dumping by free re-publishers, gutting any possible value
of the work for all time.

Here is a real fear: Shortly, I am going on a road trip lasting about two
months, during which I will do research and more writing. Under the Duke
proposal, I could return home to find out that someone had claimed my old
stories from the 70's and 80's orphaned, waited the required 30 days, and
thus be protected from me, the legal owner, from that time onward.

Presumably, the author registries proposed from several sources are the
proper safeguards, but it is going to take a lot of time to populate these
address books. No matter what is finally adopted, there are large numbers of
authors that will have to be made aware of the new registry, and given time to
update it with their works and their current contact information. The body of
work of a lifetime author, possibly producing small rewards over time, could
be put instantly at risk.

Additionally, if administrative charges aren't watched carefully, a poor author

could find himself unable to afford to pay the database update charges
necessary to protect his works. The people who need the protections of
copyright the most could be the ones left out in the cold.

[ Reply to This | # ]

Royalty free if it's non-commercial or educational
Authored by: Anonymous on Saturday, March 26 2005 @ 02:09 PM EST
You should only have to pay a royalty if you're using the orphan work to make

[ Reply to This | # ]

escape to the north
Authored by: gdeinsta on Saturday, March 26 2005 @ 02:14 PM EST

The worst situation for orphan works is films and recordings that are deteriorating. I really hope US copyright law is soon fixed to make it legal to salvage these works in the US. In the meantime, under Canadian law archives and museums are permitted to make copies, so if a recording is deteriorating really badly you could donate it to a Canadian archive or museum. York University and the University of Saskatchewan both have computer museums.

[ Reply to This | # ]

30 Days is way too short
Authored by: cricketjeff on Saturday, March 26 2005 @ 05:28 PM EST
Suppose a travel writer in his youth published under a psuedonym a very poor
account of a trip up the Amazon. Since writing this his writing and travelling
styles have both changed and he feels no need to see his old materials
republished. Clearly he is not going to make any great effort to publicise the
fact that he and the psuedonym are the same person since to do so negates his
intent. With a 30 day period he could not go on a new trip to write a better
account without fear of someone publishing the old one. A more realistic period
would be a year and even a longer period is unlikely to harm anyone, the UK's 50
years is rather over egging the pudding.Surely it cannot be urgent to republish
a work? Nothing in the document suggests such a period as short as 30 days is
I would also like to see other indices created. for instance one to allow a
creator to state that he does not wish to be contacted, that he does not wish
any of his works to be used and to provide a sample of each work in such a way
that it can be searched but not simply read as a way of identifying the work as
Overall I have rather mixed feelings about the whole idea. If the purpose of
copyright is to give the original creator control over his work, and that
appears to be the thrust of the last few hundred years legislation in the area.
Then the general presumption should be that copyright materials should stay as
they are. Fora such as this one could include boilerplate about republication
rights, and the laws could be reworked so as to clearly allow for such things.
More formally published materials could be encouraged to include general rights
and waivers. maybe a list of typical uses and fees could be maintained by
national copyright libraries, eg UK v1 could be The publishers and author of
this work reserve all rights, in the event that at some future date they cannot
be contacted they give permission for the contents to be used against the
standard copyright fee in the UK.
These fees would be paid into an escrow account and held until the copyright can
be deemed to have expired or they are claimed.
I further see no reason for any legislation to include a particular capping
figure. It is relatively easy to construct circumstances where close to 100% of
the value of a new work would derive from the creation of the old and other
circumstances where the old work is purely incidental. There should be a system
created to allow a copyright owner to request a specific level and if that is
not agreed with the new user an arbitration should be held.
On top of all these it should clearly be possible to attach a statement to any
work that under no circumstances should this work be treated as orphaned however
well intentioned a future potential user is.
As for the costs of restoring material so that it is not lost to posterity, this
is part of the role of national copyright libraries, these bodies should always
be allowed to make copies for preservation purposes but they do not need to
recover the costs of doing so from copyright works, if they are allowed to do
that there is a strong disincentive to anyone obeying the rules and depositing
the work with them. If society things literary and other creative works are
worth preserving then society has to fund that preservation.

[ Reply to This | # ]

Doesn't this exist already?
Authored by: Anonymous on Sunday, March 27 2005 @ 04:54 AM EST
The normal response of archivists, libraries, film restorers, artists, scholars, educators, publishers, and others is generally to give up

I have a copy of a book called "I Sailed with Chinese Pirates", by Aleko B. Lilius, reprinted by Oxford University Press in 1991. The copyright page includes the following:

"First published by J. W. Arrowsmith Ltd. 1930. All attempts to trace the copyright holder have proved unsuccessful."

And yet, the book was reprinted, and used copies are available from Amazon.

(By the way, it's a fascinating book, for those of you who still read books.)

[ Reply to This | # ]

Parallel Problem with Source Code in Books on Software
Authored by: Wesley_Parish on Tuesday, March 29 2005 @ 07:22 AM EST

You read the copyright notice in the frontispiece, for example, in Jack Purdum's "C Programmer's Toolkit", published by Que Corporation, ISBN 0-88022-457-6:

All rights reserved. Printed in the United States of America. No part of this book may be used or reproduced in any form or by any means, or stored in a database or retrieval system, withinout prior written permission of the publisher except in the case of brief quotations embodied in critical articles and reviews. Making copies of any part of this book for any purpose other than your personal use is a violation of United States copyright laws. For information, address Que Corporation, 11711 N. College Ave, Carmel, IN 46032.

There it is in a nutshell - the central paradox of the Technical Computer Book market. To sell books in it, you need to appeal to the working programmer; and some twit from Legal goes and slaps on some stupid statement like that? You the Technical Writer and Programmer, have put time and effort into writing some software intended to be useful to other working programmers - again, to briefly quote from this specific book's

The goals of This Book

This book's primary goal is to provide you with C functions that will be useful in your programming activities. although a number of commercially available libraries offer functions similar to many presented here, there are several advantages to using this book. First, the book explains how each function works, giving you a broader understanding of each function and how the C language is used with your system. Second, this book/disk set provides the source code for each function. Having both the source code and an understanding of how things work will make it easier for you to modify or extend the functions. Having the source code also means that you can move most of the functions to other invironments if necessary.

As you can see, the goal of the book is in diametrical opposition to the laws invoked to protect it. If I make any use of the functions written in the book, I violate the Que Corporation's copyright; if I go find some other way to do the work and leave the book to get remaindered, the Que Corporation goes out of business.

And since the book's goals and the laws invoked to protect it, as in such diametrical opposition, I am not inclined to respect the laws - in this case, the laws invoked, are invoked with the end effect of bringing them into disrepute, even if that was not the intended purpose thereof.

I think it would be good if the publishers and writers of such books could agree on something intelligent for once - the placing of all such code snippets, functions and so on and so forth, under a BSD license - unless the writer specifically dictates some other such F/LOSS copyright license, so that such books don't bring copyright laws into disrepute.

As it is, if I make use of any of those functions in any code I write, I run the risk of getting sued for violating the US copyright law - in diametrical opposition to the declared goals of the book. So I think I'll pass.

finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )