Lessig on Orphan Works

Larry Lessig is suggesting in the NY Times today that:

Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.

Larry’s proposal can’t apply to foreign works because of the “no formalities” requirement of the Berne Convention (Article 5).

Assuming that it could apply to American works (i.e. giving less protection to American works than foreign works), there would still be some big problems, also arising from the national treatment doctrine under Article 5. For example, what if the “country of origin” under the Berne Convention is not clear? In many cases, it will be unclear - particularly if the author’s identity isn’t known, or if it simultaneously published in several countries.

It will also be unclear in many instances when the 14 years starts to run.

Above all, what if someone needs to copy the work before the 14 year period? Would Larry’s suggestion not, in effect, make that even more difficult than now?

Anyway, the idea of a parallel registration system that would require American copyright owners to register before 14 years have expired is likely to be totally unacceptable to vast ranges of corporate interests, and even individual song writers and others who have come to believe that “no formalities” means “no formalities.”

HK