Apparently, Larry Lessig had difficulties too.

Maybe this sounds paternalistic, but I don’t think descendants of writers always make decisions that are in keeping with the author’s desires if were they alive. For example, the Joyce estate is notorious for impeding scholarship (see this New Yorker profile). That’s why the decision to extend copyright is worrisome; the relatives really have no idea what the author would have wanted; maybe they are hostile to the very idea of propagation of the original artefact in the public sphere. Maybe they are motivated solely by the desire to monetize intellectual property. Sonny Bono’s extension only increases the distance between the author (and those who came in contact with the author) and those who hold the rights today.

It is reasonable to insist upon minimum re-registration fees if the public has an interest in copyrighted works becoming publicly available. The rights of ownership should entail some maintenance and responsibility if they are going to last as long as 95 years or 70+ author’s life.

Finally, I am concerned that media companies have taken more control of rights for many entertainment properties than is reasonable. Perhaps this is more likely to happen in music or film than in publishing; also, if rights are ceded to companies in such a fashion, one has to assume that artists realized the implications of the contracts they signed. But when Time-Warner starts sending out cease-and-desist letters to mp3 sharers, I have to wonder whether they can have ANY concept of fair use or common culture if they insist on retaining ownership rights to Happy Birthday and sound recordings made during Edison’s day. They are a profit-seeking business, more disposed to forbidding than allowing when it comes to derivative works, clearance, republishing and digitalization.

Fortunately, 21nd century writers and artists are more attuned to the implications of signing away digital rights. Then again, could Dorothy Scarborough ever have anticipated that The Wind would be completely unavailable in 2007 when she published her novel in 1925?

In the Orphan Works case, there is an inability after proper due diligence to locate the copyright owner. One of the biggest points of disagreement in the Orphan Works Act of 2006 (now part of the Copyright Modernization Act of 2006) is developing criteria for a diligent search of a copyright owner. Under the Orphan Work revisions to the Copyright Act, there would be safe harbors for reproducing works that have truly been orphaned.

Whether we like it or not, the copyright owner can choose not to license or reproduce a work. It is that simple.

Also, I think assumptions are being made in many of the posts that an unrelated third party (like a behemoth corporation) owns the copyright and not the actual author of the work. You really cannot make that assumption. For many of the older works, the heirs of the author have (or could have) claimed the ownership under the termination provisions in the 1909 Copyright Act and either control the rights directly or have chosen to enter into new licensing arrangements.

I appreciate everyone’s point of view.

Thanks.

If it requires stealing from the public, it’s not excusable.

While I appreciate the loss of access to many great works because of high costs or fear of litigation, I respectfully ask that you not forgot those individuals who benefit from the extension. There are many creative folks who were/are able to leave a legacy and retirement to their family because of the protections under the copyright act and the extensions to the copyright act.

blog: http://www.ipandentertainmentlaw.wordpress.com
website: http://www.tbennettlaw.com

As far as I know, it’s not so much that the cost of paying whoever owns the right to a long out of print, old book to republish it, it’s finding out who owns these rights in the first place and then getting them to agree to reasonable terms.

No publisher is willing to risk a lawsuit by publishing a book to which the rights are unclear if they can help it and at the same time, a lot of people who own the copyrights of out of print books are people unfamiliar with the book business, so clueless as to what a good price is….