eff-logo-plain-300We’ve written about how international treaties like the Trans-Pacific Partnership tend to be a way to end-run around the laws and courts of any one nation by having multiple governments agree to things that never see voter approval. The Electronic Frontier Foundation, Creative Commons, Authors Alliance, Knowledge Ecology International, and New Media Rights would probably agree.

Those organizations have signed a letter to US Trade Representative Michael Froman requesting that he not agree to any provisions in the treaty that would block ongoing attempts in Congress to reform the laws surrounding orphan works. The EFF’s announcement notes:

In the midst of this overdue discussion about how to address this issue the Trans-Pacific Partnership (TPP) threatens to undermine Congress’ own ability to create practical solutions to fix it. The leaked TPP’s Intellectual Property chapter has revealed heavy-handed civil and criminal penalties that could go beyond existing U.S. law to treat even noncommercial uses of copyrighted content, including of orphan works, as illegal and criminal.

Whether this letter will actually have any effect is unclear. If history is any indication, treaty makers don’t tend to care a lot for what voters or advocacy organizations want. Still, it’s a way of drawing more people’s attention to the simple fact that these treaties tend to be a way to override laws with little accountability. I have little doubt that the orphan works matter is far from the only place the TPP would conflict with US laws or prerogatives.


  1. Much hinges on what the EFF means by “noncommercial uses of copyrighted content, including of orphan works.” Commercial v. non-commercial is merely one factor in determining if a copyright violation has occurred. There’s a host of ways to benefit without money actually changing hands.

    * Someone who creates a video adaptation of a book without permission can see their professional career benefit, yielding a large future income, even if that video is available for free on Youtube. The very fact that the creator said ‘up yours’ to the copyright will make him even more famous and thus eventually richer.

    * Libraries, particularly academic ones, can benefit from texts scanned and made available online even if no charge is made for that online version. Why? Because a book not bought is money not spent and money not spent is just as real.


    The EFF’s mention of “orphan works” as if that constituted a loophole in copyright laws suggest that the EFF is as intent on gutted existing copyright laws as are those shadowy corporate interests they’re attacking. There is nothing in existing copyright law, including the traditional U.S. approach or that of the Berne Convention, that makes the slightest distinction between out-of-print and in-print texts. There is no ‘right to read’ clause in copyright law.The fact that authors or their estates may be hard to find is a rationale for making that finding easier. It’s not a rationale for gutting copyright.

    An author has a perfect right for whatever reason to never publish what he has written or to block future publication, reducing the available copies to what has already been published. Copyright is, at its very essence, a right to prevent copying. And note that by that I don’t mean after the fact compensation. Some authors may not want to be paid. They simply want no publication.


    Keep in mind something critical. If you assume this mythical ‘right to read,’ then no author is safe. The ultimate in out-of-print book is one that has never been published, one that only exists in manuscript. If the fact that a book isn’t in print means it isn’t protected, as Goggle among others have almost argued, then it is also true that book that’s never been in print has no real protection. Once an author dies and his literary estate becomes the slightest bit murky, he can be copied with abandon.

    What Google did illustrates that to near perfection. Google copied millions of books, mostly academic, from university libraries, arguing that they were orphan works. That was nonsense. Very few academic books are orphans, meaning their authors or their estates cannot be easily traced. Academia is a small and personalized world. University professors or their estates are remarkably easy to track down.

    I saw that myself in the 1980s and thus pre-Internet. I wanted to get in touch with someone who knew about the author of a book published in the mid-1930s. I began with nothing to go on but the fact that he was a biology professor at UC-Berkely. Within a week I was corresponding with someone who knew him well, his former department head.


    My attitude as an author is to call down on a pox on both sides in this dispute, both the large corporate interests who want to shift the cost of prosecuting copyright violations onto government agencies, saving them money, and the geeky ‘right to read’ crowd who seem to have an aversion to paying content creators of all sorts. To the latter, I say that the fact that digital copying is easy and cheap doesn’t make it right. It’s the creation that requires the labor not the copying. If you want to be free of all charges of copyright infringement, create your own story from scratch.


    Our copyright law is in desperate need of revision and I do think it should be done in an open arena where competing interests can be heard, including these clashing extremes. But I hope the result will leave copyright power where it belongs, which in the hands of the original creators.

    Michael W. Perry, author of Untangling Tolkien, a day-by-day chronology of The Lord of the Rings whose fair use right I defended and won after a nearly year and a half battle in federal court. I’m a strong believer in fair use. But that also means I am also an ardent foe of unfair use.

  2. Michael W. Perry gets his facts wrong again. Google never argued that their library program was OK because the books were orphan works. Google always claimed that the scanning they did so that they could search books and return 3 line snippets was fair use. Hathi Trust, which is a consortium of university libraries partnered with Google’s library scanning project, attempted to an orphan works project in 2011 and put it on hold when they were sued, in part because their attempts to identify orphan works was flawed.

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