In the old west, the land title office represented law and order, and helped keep the peace among ranchers, farmers and miners with competing claims. In the movie version of the old west, the land title office invariably burns down… and the drama begins.
It’s obvious that copyrights are critical to our economy, as the legal underpinning of software, movies, music, books, newspapers, magazines, art and other intellectual works. You might be surprised to learn that, here in the 21st century, in some respects our copyright system resembles the old west, after the title office has burned down.
Professor Hal R. Varian explains a new trend to bring back law and order in a recent article, "Copyrights that No One Knows About Don’t Help Anyone." (The New York Times, 5/31/07).
He points out that under current law, a work is automatically copyrighted when it is "fixed" in a "tangible medium of expression" (e.g., words written on a piece of paper, music saved to a CD, video saved to an online digital archive). No notice (c-in-a-circle) or registration is required. This came about when the U.S. joined an international treaty in 1989 known as the Berne Convention. Many clients do not understand this, because they remember the prior law, which did require notice and registration. (There are still many benefits from notice and registration, they just aren’t needed to obtain and maintain the basic copyright itself.)
Although this approach is great for authors, Varian explains that it makes it very difficult – or even impossible – if you are seeking permission to use a work, but can’t determine who the owner is, or can’t find the owner. (If you don’t believe me, see Copyright Office Circular 22, How to Investigate the Copyright Status of a Work.) Such works are called "orphan works."
Re-enter the Title Office. Varian describes proposals by the U.S. Copyright Office and Stanford University Law Professor Lawrence Lessig to introduce a limited registration system for orphan works. This will reduce costs of finding the owners and obtaining permissions. He mentions other limited registries for clearing rights that already work well – the Copyright Clearance Center for permissions for printed works and the Harry Fox Agency for certain song permissions.
These are pragmatic proposals. Until some reliable registry exists, the drama (and frustration) of the old west will continue well into our century.