Reply comments on US issues raised by "orphan works"
From what I understand, no PG volunteer (not counting John Mark Ockerbloom) has posted a comment to the US Copyright Office's RFC about "orphan works".
So now US copyright policy will be guided by comments such as Kristie Hubler's: "If people have access to my work without paying for it, and using it just to make a buck, it would be as if I were being raped, or having a child I bore ripped out of my arms, never to be seen again." It may very well be possible that PG volunteers have no opinion about orphan works. In that case, consider this e-mail message not sent. If you are concerned about orphan works, now is your last chance to be heard. You can send reply comments to the US Copyright Office until May 5, 2005. The rules are explained here: <http://www.copyright.gov/orphan/comments/> Initially some 700 comments were submitted. It's hard to read through all of them, so I suggest Googling for abstracts, looking for the usual suspects et cetera. There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes. Do not wait for an official PG position statement. Official statements are hard to draft, because they require consensus. Also, official statements tend to sound impersonal, exactly because they represent a consensus position. There is nothing wrong with sounding like you actually care (although I would leave the Hubler-style hysterics at home). -- branko collin collin@xs4all.nl
Reminder: please offer comments! I'm planning on getting something in by the May 9 5:00 pm EDT deadline (it's not May 5 as mentioned) below. More: On Sun, Apr 17, 2005 at 09:33:41PM +0200, Branko Collin wrote:
From what I understand, no PG volunteer (not counting John Mark Ockerbloom) has posted a comment to the US Copyright Office's RFC about "orphan works".
So now US copyright policy will be guided by comments such as Kristie Hubler's: "If people have access to my work without paying for it, and using it just to make a buck, it would be as if I were being raped, or having a child I bore ripped out of my arms, never to be seen again."
The nature of the comments that can still be submitted are "reply comments." If you find particularly good documents to reply to (either because they say something great, or something terrible), please let me know.
It may very well be possible that PG volunteers have no opinion about orphan works. In that case, consider this e-mail message not sent.
We actually have a draft rule to apply for such orphaned works, but it is not in place yet because we have not received sufficient legal guidance for me to feel comfortable applying it (in case you didn't already know this, as CEO my main most important role, though not usually one that takes the most of my time, is to manage PGLAF's risk. The majority of our risk comes from decisions we make about the copyright status of works we distribute). I am appending our "rule 9 howto" draft below, in case you're interested. This draft is *not* for use. We are *not* taking "rule 9" clearance requests. It is *not* legal advice. The URLs mentioned don't work. All that said, I think it is approximately consistent with our understanding of the current copyright law in the US.
If you are concerned about orphan works, now is your last chance to be heard. You can send reply comments to the US Copyright Office until May 5, 2005. The rules are explained here: <http://www.copyright.gov/orphan/comments/>
May 9, 5:00 pm EDT.
Initially some 700 comments were submitted. It's hard to read through all of them, so I suggest Googling for abstracts, looking for the usual suspects et cetera.
I'm looking at http://www.copyright.gov/orphan/comments/ and only see about 150 comments. Maybe they removed duplicates (a lot of folks probably submitted some sort of template)? Still, a lot of reading.
There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes.
(Still unused...)
Do not wait for an official PG position statement. Official statements are hard to draft, because they require consensus. Also, official statements tend to sound impersonal, exactly because they represent a consensus position. There is nothing wrong with sounding like you actually care (although I would leave the Hubler-style hysterics at home).
Concur!!! It's OK to just write a brief comment reply that says you agree with someone, or disagree with someone. It doesn't need to be a huge essay, and you do not need to be an expert about copyright. If you want to read a primer on copyright changes, see our copyright HOWTO at http://gutenberg.org/howto/copyright , especially the section after "Rule 8" (read the background stuff). -- Greg Here's the draft Rule 9, which you should *not* try to use yet: RULE 9 HOW-TO ------------- *DRAFT* NOT FOR USE This copyright rule allows Project Gutenberg to distribute materials that may still be under copyright protection but are not currently available at a reasonable cost. In order to suppport Section 108(h) clearances, we have started a list of items we believe it applies to at this Web address: http://pglaf.org/copyright The list is available for additions by any bona fide library or archive which has performed due diligence to demonstrate a work qualifies for a Section 108(h) exception. Someday, the publishers themselves or another body may form such a registry, but currently none exists that we know of so we have started our own. To demonstrate a book qualifies for a statutory license for redistribution under Section 108(h), submit the results of your research demonstrating: 1. The book is not subject to "normal commercial exploitation." Basically, this means that nobody is making money by selling the book, i.e., in new or used bookstores. 2. The book cannot be obtained at a "reasonable price." You can demonstrate both by searching libraries, new and used book vendors (i.e., amazon.com) and antiquarian book services (i.e., abebooks.com) to see whether the book is available and, if so, for a reasonable price. Our rules of thumb: - Copies of the book cost over $100. or are otherwise considered rare - Research indicates fewer than 100 copies of the book are available for sale - The book is largely unavailable in libraries (i.e., for free loan), with fewer than 100 circulating copies in US libraries Submit the outcome of your research, along with the usual title page and verso scans, via http://beryl.ils.unc.edu/copy.html For library research, use the online catalogs at locations such as the public libraries in NY, Chicago and San Franscisco, and large University libraries such as Berkeley, Harvard and Urbana-Champaign. Under this rule, your physical location is irrelevant -- so, if the NY Public has the only surviving copy and you live in Queens, that doesn't mean you are ineligible to ask for Section 108(h) exemption. Here is the text of Title 17 Section 108(h) of the United States Code. For the complete code, visit http://thomas.loc.gov or http://www4.law.cornell.edu Section 108: (h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if- (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives. Most recently updated June 22 2003 by gbn
We actually have a draft rule to apply for such orphaned works, but it is not in place yet because we have not received sufficient legal guidance for me to feel comfortable applying it (in case you didn't already know this, as CEO my main most important role, though not usually one that takes the most of my time, is to manage PGLAF's risk. The majority of our risk comes from decisions we make about the copyright status of works we distribute).
Is the delay because you have insufficient legal advice as to whether PGLAF is indeed a "library or archive," insufficient advice as to whether web distribution is one of the exempt activities in 108(h), or insufficient advice as to whether the "reasonable price" tests mentioned in the draft policy are duly diligent. -- RS
On Thu, May 05, 2005 at 04:49:24PM -0500, Robert Shimmin wrote:
We actually have a draft rule to apply for such orphaned works, but it is not in place yet because we have not received sufficient legal guidance for me to feel comfortable applying it (in case you didn't already know this, as CEO my main most important role, though not usually one that takes the most of my time, is to manage PGLAF's risk. The majority of our risk comes from decisions we make about the copyright status of works we distribute).
Is the delay because you have insufficient legal advice as to whether PGLAF is indeed a "library or archive," insufficient advice as to whether web distribution is one of the exempt activities in 108(h), or insufficient advice as to whether the "reasonable price" tests mentioned in the draft policy are duly diligent.
-- RS
All of the above, to some extent. When PG makes decisions about copyright, we do so using guidance received from our volunteer legal advisors. That is, lawyers -- including people like law school professors, law librarians and specialists in intellectual property issues. There have been over 1/2 dozen such advisors over the years, and numerous people who have contributed to individual efforts. The outcomes are evident in our license/header, as well as our copyright rules -- both of which have evolved quite a bit since the first versions in the early 1990s. Since our lawyers are volunteers, it's sometimes hard to get them to respond. It's doubly hard when issues are vague, as with the 108(h) exemptions. I hope that the LoC ruling will provide guidance we can follow, and that it results in "freeing" many orphaned works. -- Greg
On Thu, 5 May 2005, Robert Shimmin wrote:
We actually have a draft rule to apply for such orphaned works, but it is not in place yet because we have not received sufficient legal guidance for me to feel comfortable applying it (in case you didn't already know this, as CEO my main most important role, though not usually one that takes the most of my time, is to manage PGLAF's risk. The majority of our risk comes from decisions we make about the copyright status of works we distribute).
Is the delay because you have insufficient legal advice as to whether PGLAF is indeed a "library or archive," insufficient advice as to whether web distribution is one of the exempt activities in 108(h), or insufficient advice as to whether the "reasonable price" tests mentioned in the draft policy are duly diligent.
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade. The risk we worry about concerns how well we do our copyright research for eBook we label as public domain. Even if we are 99.99% accurate, that means we have likely at least one mistake in our listings. I am not a lawyer. . .this is NOT a legal opinion or legal advice. IANAL = I am not a lawyer. mh
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library."" (I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8eff7 d>.) -- branko collin collin@xs4all.nl
On Sun, May 08, 2005 at 01:46:41AM +0200, Branko Collin wrote:
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library.""
(I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8eff7 d>.)
Also, the IRS has us classified as a library for our not-for-profit status. It's a particular classification under section 501(c) of the IRS code that I'm too lazy to find - it's in our (=PGLAF) official IRS letter. This isn't something I feel a need to argue about. -- Greg
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
Branko Collin wrote:
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library.""
(I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8eff7 d>.)
He seemed to be claiming that people cannot make full use of books without the assistance of traditional "gatekeepers" like publishers, teachers and librarians. Since it does not provide these kinds of intermediaries to help readers understand the books it offers he therefore appears to have concluded that PG cannot be called a library. Richard Poynder www.richardpoynder.com
On Sun, 8 May 2005, Richard Poynder wrote:
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
Branko Collin wrote:
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library.""
(I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8eff7 d>.)
He seemed to be claiming that people cannot make full use of books without the assistance of traditional "gatekeepers" like publishers, teachers and librarians. Since it does not provide these kinds of intermediaries to help readers understand the books it offers he therefore appears to have concluded that PG cannot be called a library.
Richard Poynder
From what I understand, some of this will not be settled until yet another
We get messages all the time from people who want to convince the world that "it isn't and eBook/eLibrary until _I_ say it is an eBook/eLibrary." This would be just fine if they included whatever it was that they said would make the difference to them, then we could decide about using it. Recently just such a discussion ocurred about Frankenstein and about The Memoirs of Sherlock Holmes, and new editions have already appeared for each of these, and yet another new edition is already in progress for each of them, each with significan improvements from different sources, as well as improvements we tend to make along the way. paper edition of Frankenstein is used for a separate source edition, but that edition has not been forthcoming from the complainant. In just the opposite manner, we DO have source materials for a new Memoirs, and perhaps other Holmes works, as per the Strand magazine and the various book editions, and one way or another, there should be some more Memoirs editions on the way. Thanks!!! Michael
On 10 May 2005, at 6:53, Michael Hart wrote:
On Sun, 8 May 2005, Richard Poynder wrote:
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
Branko Collin wrote:
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library.""
(I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8e ff7 d>.)
We get messages all the time from people who want to convince the world that "it isn't and eBook/eLibrary until _I_ say it is an eBook/eLibrary."
And of course the next day the wheel turns half a rotation and prof. Michael S. Hart gets called a bona fide "hero of the global literacy revolution" (<http://star- techcentral.com/tech/story.asp?file=/2005/4/28/itfeature/10719288&sec= itfeature>). :-) -- branko collin collin@xs4all.nl
I realize that it has been a while since this message was posted, but I wanted to briefly comment. Project Gutenberg isn't a library? Who cares. Perhaps the distinction is a big one for the ivory tower types, but for the average reader, and maybe even many of the serious readers, it just doesn't matter. What matters is that person X found their favorite book from childhood, person Y found several great texts that they can adapt to teach English to their students, and person Z discovered a new favorite author. That being said, I still think we should preserve as much of the source information as is practical. It would have been interesting to see his reasons for saying that PG is not a library, unfortunately, either he provided none, or they were not included in the article. However, I don't hold out much hope that they would have been terribly enlightening, considering that elsewhere in his talk he said, "Wisdom precedes knowledge, which precedes information... I'm trying to invert the standard hierarchy." If that were true, it would open the door for a whole new world of excuses. "Yes I'm illiterate. I was born that way." Or perhaps I just missed his point. Aaron Cannon At 06:46 PM 5/7/2005, you wrote:
On 6 May 2005, at 11:29, Michael Hart wrote:
We have received very good conservative legal advice that Project Gutenberg is indeed a library or archive, and probably both, and has been for over a decade.
"Likewise, he encouraged libraries to "push back against the easy assertion that Project Gutenberg is a library.""
(I am not sure what that person was on about though. Full article at <http://www.cornellsun.com/vnews/display.v/ART/2005/05/06/427b00a8eff7 d>.)
-- branko collin collin@xs4all.nl _______________________________________________ gutvol-d mailing list gutvol-d@lists.pglaf.org http://lists.pglaf.org/listinfo.cgi/gutvol-d
-- E-mail: cannona@fireantproductions.com Skype: cannona MSN Messenger: cannona@hotmail.com (Do not send E-mail to the hotmail address.)
On 4 May 2005, at 22:00, Greg Newby wrote:
Reminder: please offer comments! I'm planning on getting something in by the May 9 5:00 pm EDT deadline (it's not May 5 as mentioned) below.
On Sun, Apr 17, 2005 at 09:33:41PM +0200, Branko Collin wrote:
The nature of the comments that can still be submitted are "reply comments." If you find particularly good documents to reply to (either because they say something great, or something terrible), please let me know.
What I noticed so far is that few comments propose solutions. Many people want strawberry icecream, few are willing to make it. Perhaps this is a useful angle; by pointing out what the author failed to describe, PG can still write its original comment. (I am not going to write it though. I would be willing to edit it, but expect to be busy this weekend.)
Initially some 700 comments were submitted. It's hard to read through all of them, so I suggest Googling for abstracts, looking for the usual suspects et cetera.
I'm looking at http://www.copyright.gov/orphan/comments/ and only see about 150 comments. Maybe they removed duplicates (a lot of folks probably submitted some sort of template)? Still, a lot of reading.
I guess I just looked at the last index number (in the file name: OW0721-Duranceau). What's more, I do not see any gaps in the list of numbers.
There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes.
(Still unused...)
Not anymore. I wrote abstracts for 15 comments in an hour. Most of those comments are 1 page affairs (often just a couple of lines in support).
Do not wait for an official PG position statement. Official statements are hard to draft, because they require consensus. Also, official statements tend to sound impersonal, exactly because they represent a consensus position. There is nothing wrong with sounding like you actually care (although I would leave the Hubler-style hysterics at home).
Concur!!! It's OK to just write a brief comment reply that says you agree with someone, or disagree with someone. It doesn't need to be a huge essay, and you do not need to be an expert about copyright.
Apparently <http://www.orphanworks.org> has a form (again) for submitting replies to the comments. Unfortunately the link doesn't work for me. -- branko collin collin@xs4all.nl
What I noticed so far is that few comments propose solutions. Many people want strawberry icecream, few are willing to make it. Perhaps this is a useful angle; by pointing out what the author failed to describe, PG can still write its original comment.
FWIW, my reply emphasized 2 solutions which are already on the table. A few minutes with Google should suffice to find more details on each. 1. H.R. 2601, which adds an inexpensive renewal requirement [FYI, and not included in my reply, I believe this approach is backed by Lessig and the Creative Commons folks. It's actually a very clever way to give the big companies the long duration they fight for and to also free works that are genuinely orphans.] 2. Mike Godwin of Public Knowledge proposed that copyrighted material could be used prior to expiration if the new user has made a reasonable effort to contact the copyright owner (I favor both.) ... NOTE: it's helpful to put solutions in a little bit of context, even a 1 sentence description of PG and another sentence on what you personally get out of it and/or your vision of its benefit to society. (My reply was from a commercial perspective.) -- Cheers, Scott S. Lawton http://Classicosm.com/ - classic books http://ProductArchitect.com/ - consulting
On 7 May 2005, at 3:42, Branko Collin wrote:
On 4 May 2005, at 22:00, Greg Newby wrote:
There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes.
(Still unused...)
Not anymore. I wrote abstracts for 15 comments in an hour. Most of those comments are 1 page affairs (often just a couple of lines in support).
I have added twenty more, but do not think I will do more than that. I'll take requests, though. Are there any comments where you feel we should reply? -- branko collin collin@xs4all.nl
On Sun, May 08, 2005 at 03:13:19PM +0200, Branko Collin wrote:
On 7 May 2005, at 3:42, Branko Collin wrote:
On 4 May 2005, at 22:00, Greg Newby wrote:
There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes.
(Still unused...)
Not anymore. I wrote abstracts for 15 comments in an hour. Most of those comments are 1 page affairs (often just a couple of lines in support).
I have added twenty more, but do not think I will do more than that. I'll take requests, though. Are there any comments where you feel we should reply?
Were you thinking of putting these into some sort of formal response document? Or, are they just grist for others who might want to write their own comments? I'm trying to work on this today (nothing like the last minute...), and the comments are quite useful. I did not find any specific guidance for how to write responses -- did you? In the past, I've seen guidelines about (a) needing to reference particularly items you are responding to, and (b) some sort of size limitations. - One aspect I'm interested in is creation of derivative works. - Another is for people like us who really, really want to follow the copyright law, but identify all these challenges and vague aspects, and that the public domain has been dramatically shrinking (as a proportion of all available works). - Did you see anyone with a specific plan, like our Rule 9 HOWTO? I think our Rule 9 is relevant, but it's only about section 108(h) -- and there are some broader issues in Title 17 that the copyright office is looking at. *Thanks* for any additional analysis you can provide. I do hope that people are thinking of sending a response, even a brief one. -- Greg
On 8 May 2005, at 11:52, Greg Newby wrote:
On Sun, May 08, 2005 at 03:13:19PM +0200, Branko Collin wrote:
On 7 May 2005, at 3:42, Branko Collin wrote:
On 4 May 2005, at 22:00, Greg Newby wrote:
There's an unused Wiki running at <http://www.gutenberg.org/cgi-bin/wiki-newsletter.cgi>. I suggest you use that for sharing notes.
(Still unused...)
Not anymore. I wrote abstracts for 15 comments in an hour. Most of those comments are 1 page affairs (often just a couple of lines in support).
I have added twenty more, but do not think I will do more than that. I'll take requests, though. Are there any comments where you feel we should reply?
Were you thinking of putting these into some sort of formal response document?
Nope.
Or, are they just grist for others who might want to write their own comments?
Yep.
I'm trying to work on this today (nothing like the last minute...), and the comments are quite useful. I did not find any specific guidance for how to write responses -- did you?
I did, lemme check. (/me rummages on the web...) Ah, the page with the 700-something comments says: "Parties who wish to submit reply comments should follow the instructions set forth in the Notice of Inquiry and summarized here. The deadline for reply comments is 5:00 p.m. EDT on May 9, 2005." "Summarized here" is linked to <http://www.copyright.gov/orphan/>. Same rules as before, except now you should mark your document as "reply comment".
In the past, I've seen guidelines about (a) needing to reference particularly items you are responding to, and (b) some sort of size limitations.
Check the webpages I linked to, please.
- One aspect I'm interested in is creation of derivative works.
- Another is for people like us who really, really want to follow the copyright law, but identify all these challenges and vague aspects, and that the public domain has been dramatically shrinking (as a proportion of all available works).
I have seen one or two of those... http://www.copyright.gov/orphan/comments/OW0032-WSCA-FM.pdf wants to do the right thing, IIRC, but is hindered by the law. Yet he sees infringement all around him, apparently going on unpunished.
- Did you see anyone with a specific plan, like our Rule 9 HOWTO? I think our Rule 9 is relevant, but it's only about section 108(h) -- and there are some broader issues in Title 17 that the copyright office is looking at.
I have only looked at some 40 documents, so little over ten percent of all the comments. So far, however, I have seen no specific guidelines of how to deal with tracking down copyright holders. See my list though for "librarian", "professor", those sort of folks, who generally came up with slightly specific proposals. Also, look out for the usual suspects. Perhaps you can say something about (or in support of) JM Ockerbloom's comment. It appears the Center for Internet and Society at Stanford (<http://cyberlaw.stanford.edu/>) has been mailing out calls for reply comments to well-known copyfighters, asking them to perform specific tasks. (Or so it appears from Rik Lambers' Consitutional Code blog.) Perhaps they have a better overview of who wrote what.
*Thanks* for any additional analysis you can provide. I do hope that people are thinking of sending a response, even a brief one.
I'll try and dig specific comments for you that are relevant to us. -- branko collin collin@xs4all.nl
Branko Collin typed:
Also, look out for the usual suspects. Perhaps you can say something about (or in support of) JM Ockerbloom's comment.
Great idea! In case anyone who is willing to submit a brief comment is still looking for ideas, here's one from JMO's (long and excellent) comment that's worth highlighting: 32, The requirement used in certain other exemptions of copies not being available at a reasonable price should not be a general requirement for the use of orphan works. A few copies of a work on the used market does not substitute for uses such as posting a work online for public access, or performance of a work, or creation of derivative works. To help drive the point home, it would be great if someone has a specific example they could cite, e.g. of a derivative work that's substantially different from print books that are listed on places like Abebooks. It's fine if the actual example uses a public domain work, then points out that the equivalent is not currently legal with orphan works. -- Cheers, Scott S. Lawton http://Classicosm.com/ - classic books http://ProductArchitect.com/ - consulting
Here's what I've come up with. Branko's analysis of comments was immensely helpful - I never would have been able to incorporate such specific themes without his help. Any ideas, or feedback? I will send this at about 11:00 am AKDT (4:00 pm EDT), unless convinced otherwise. -- Greg -------- To: The Librarian of Congress and the US Copyright Office Date: Monday May 9 2005 Subject: Reply comments to "Orphan Works" inquiry From: Dr. Gregory B. Newby, CEO The Project Gutenberg Literary Archive Foundation 4557 Melan Dr. S. Fairbanks, AK 99712 email: gbnewby AT pglaf.org telephone: 907-450-8663 These reply comments are on behalf of the Project Gutenberg Literary Archive Foundation (PGLAF). PGLAF is a 501(c)(3) not-for-profit that operates Project Gutenberg (PG). PG is one of the world's oldest all-electronic information providers, started in 1971 with Michael Hart's creation of an eBook of the US Declaration of Independence. Since Michael Hart's invention of eBooks, he has worked to create a movement for the creation and distribution of free electronic literature. My own involvement, which started in 1992 and became much broader with my accepting the Chairmanship of PGLAF in 2001, has emphasized addressing the technical, social and educational opportunities for the continued growth of PG's collection. Project Gutenberg currently offers over 16,000 titles, nearly all of which are in the public domain in the United States. We are very interested in the topic of Orphaned Works, and welcome The Library of Congress' efforts to understand and meet the special challenges they present. We are pleased to offer reply comments to several of the comments posted to http://www.copyright.gov/orphan/comments/ , and wish to augment or refute several of the claims we have found there. At the outset, we wish to speak to comments without an adequate understanding of existing copyright protection, or who feared that attention to orphaned works would somehow endanger their own creative and artistic output. For example, Mark R. Brown [OW0005-Brown] seems to have confused copyright with contracts, in seeking to require a publisher to return copyright to the author if the publisher elects to take his books out of print. We are sympathetic to this request, but do not think a work in its first years of copyright protection with a currently active publisher is a subject for orphaned works clarification under section 108(h) of Title 17, or the other related themes raised in the Notice of Inquiry. In the comment of Donna L. Beales [OW0009-Beales], we see fears that the law is inadequately protecting the rights of authors. While there are certainly increased opportunities for abuse, thanks in large part to recent technical advances, we strongly believe that existing copyright law is, if anything, too protective of authors. With contemporary copyright periods lasting 95 or 120 years, this is beyond the expected lifetime of contemporary authors. Moreover, our analysis shows that for those items published prior to January 1, 1923 (the current cutoff for items easily demonstrated to be in the public domain), well under 1% are still in print. In other words, there are almost no authors or works that are making any kind of money, or are otherwise benefitting authors, from that period. We believe Ms. Beales is more likely to be interested in better enforcement, and in better means to take action against known infringers. Indeed, although Project Gutenberg focuses on public domain works, we also have several hundred copyrighted works by contemporary authors. We constantly struggle to help these authors to track down and take action to stop infringers from reselling their works without permission. Surprisingly to some, the infringers are usually bona fide publishers or commercial Web sites, including large sites such as eBay and Amazon.com. Our titles by author Sam Vaknin are one example. We support the comments of Donna Daugherty/Christian Recording Studio [OW0013-Daugherty] in the call for better copyright education. Unfortunately, trade associations, notably the MPAA and RIAA, have sought to provide such education in an unbalanced and inaccurate manner. We hope that Ms. Daugherty encourages seeking to educate the public about the historical and legal basis of copyrights for a "limited time," as envisioned by the Founders -- rather than pandering to trade organizations who, for example, misrepresent "fair use" (under Title 17) as piracy, and seek to squash protected activities to further their own profiteering. The comments of Joshua J. Bowman [OW0016-Bowman] support the notion of fair use, and the freeing of orphaned works, as a means to enhance artists' creativity. We concur, and believe there are great numbers of such works. Our analysis of LoC copyright renewal records indicates that from 1923-1988, only about 10% of copyrighted items were renewed (we were surprised to find that the elimination of the requirement for renewal did not lessen the renewal rate). This means that 90% of items from 1923-1964 are public domain, but it takes copyright renewal research to prove it. Such research is described in our copyright "rule 6" at http://gutenberg.org/howto/copyright-howto , and is onerous. Another 90% of items since 1964 were similarly not renewed. How many of these items are still in print, and how many might quality as orphaned works under section 108(h)? We speculate there are at least one million items (primarily books) published since 1964 that would qualify, and another one million from 1923 to 1964 that are in the public domain, but demonstrating their copyright status is difficult. In his comments, David Creighton Samuels [OW0017-Samuels] sees the gold mine for creative work in these millions of items, but fears the mine field of trying to identify which works are truly either public domain (through copyright expiry or non-registration) or orphaned. Based on the high proportion of public domain works and orphaned works, compared to the vanishingly small proportion of works still in print and/or still generating proceeds for their copyright holders, we agree with the many comments that suggested some form of registration for continued copyright protection. Although Congress removed the requirement for renewal in the 1976 copyright act, we do not believe this prevents a requirement for registration against being declared an orphan. Many comments offered suggestions to make this more appealing to copyright holders, such as Garry Jaffe [OW0020-Jaffe] and Steve Rhode [OW0022-Rhode]. We believe that a process that protects both parties against unintentional infringement, such as that suggested by John Michael Williams [OW0010-Williams], can co-exist with copyright protection. Comments by Thomas A. Beckett/Law Offices of Thomas A. Beckett, PLLC [OW0024-Beckett] makes a similar suggestion, but also suggests a shortening of copyright terms. We support such shortening wholeheartedly: at the time of the US's creation, copyright protection lasted for 14 years with one extension. This grew, especially during the 20th century with, amazingly, fourteen separate extensions of copyright terms. The net is that the balance has shifted, so that the proportion of currently sold or widely available items under copyright protection is vastly greater than the proportion of items that are in the public domain, or otherwise available for creative and artistic use. The notion of an "active" rights-holder is very much consistent with our understanding of the Founders' intent. The Founders did not seek to have unlimited copyright terms, or unlimited expansion of copyright terms. Rather, they considered copyright to be an active granting of rights to a copyright holder, which would be balanced by active benefits to the public. The comments of Lawrence Lessig et al./Save The Music and Creative Commons [OW0643-STM-CreativeCommons] speaks to this theme quite well, and we concur with their notion. We suggest that their intentions are particularly appropriate for future shaping of copyright laws, and for the conceptual basis of the LoC's decisions concerning orphaned works. By their nature, most creators of orphaned works are difficult to find (and may be deceased or otherwise unavailable). Thus, we might not be able to expect such an active role for rights-holders from, say, 1964 or prior. Although we have managed to determine non-renewal, and therefore public domain status, for many hundreds of books through our copyright clearance procedures described at http://gutenberg.org/howto/copyright-howto , we have long recognized the difficulty in doing so. Until late 2004, when our eBook #11800, "U.S. Copyright Renewals, 1950 - 1977," became available, there was no free electronic source we know of to look for copyright renewal records. Even with this valuable resource, there are opportunities for error, due to the details and vaguaries of the copyright renewal process. Plus, eBook #11800 only covers books. Because we know how difficult non-renewal research is for books, we are particularly sympathetic to the several comments made about films and radio dramas. Such comments identify that multiple copyright holders (for performance, scores and scripts), along with vast numbers of studios that went out of business or were bought during the golden ages of radio and film, make tracking copyright holders or renewal records nearly impossible. Such comments were offered by John Lovering/WSCA-FM [OW0032-WSCA-FM] Kenn Rabin/Fulcrum Media Services [OW0030-FMS] and Jon Miller [OW0001-Miller], among others. In closing, we would like to echo the calls of comments such as those of Maureen LaWent [OW0033-LaWent], David H. Bailey [OW0026-Bailey] and Alex Krupp [OW0025-Krupp], that support the moral right of the US to foster a vibrant and growing public domain. All persons in the creative arts rely on access to the works of their predecessors to advance. A healthy, accessible and non-threatened public domain is the best possible gift a society can make to itself. Respectfully submitted, Dr. Gregory B. Newby Director and Chief Executive Officer Project Gutenberg Literary Archive Foundation
Here's what I've come up with. Branko's analysis of comments was immensely helpful - I never would have been able to incorporate such specific themes without his help.
Any ideas, or feedback? I will send this at about 11:00 am AKDT (4:00 pm EDT), unless convinced otherwise. -- Greg
I think it is great. Of course you do manage to make it look like you've only looked at the first 35 comments :-), but I do not think that is necessarily bad: you put those comments in a context that makes clear what is important to PG. I've skimmed over the text at work, so haven't been able to look for errors and typos. However, from what I have seen this text is fine.
The grammarian in me revolts at the use of "Plus" as a conjunction, particularly at the beginning of a sentence, but that's a minor nit-pick about an otherwise excellent submission. Geoff
On Mon, May 09, 2005 at 06:17:18AM -0400, Geoff Horton wrote:
The grammarian in me revolts at the use of "Plus" as a conjunction, particularly at the beginning of a sentence, but that's a minor nit-pick about an otherwise excellent submission.
Fixed! Thanks... yes, we do attempt to use proper grammar, but it can be hard, when living in a sea of less-than-perfect usage. And, occasional over-hyphenation :-) Unrelated: another nit that I like to pick is the use of adverbs. "Most importantly," rather than "most important." I had an argument with editors at the MIT Press for a book I compiled way back when, with them insisting their editorial policy was that such adverbs were, in fact, adjectives. -- Greg
nitpick ---> "quality" should be "qualify" I think you already sent this though.... Jeff <snip>
Another 90% of items since 1964 were similarly not renewed. How many of these items are still in print, and how many might quality as orphaned works under section 108(h)? We speculate there are at least one million <snip>
Thanks for working on this issue.
On Mon, May 09, 2005 at 04:03:06PM -0500, jwaddell@spunge.org wrote:
nitpick ---> "quality" should be "qualify"
Fixed, for posterity...
I think you already sent this though....
Yep. I'm to blame for the typos, misrepresentations, over-generalizations, and so forth. Everyone else gets the credit for any good stuff! -- Greg
participants (10)
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Aaron Cannon -
Branko Collin -
collin＠xs4all.nl
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Geoff Horton -
Greg Newby -
jwaddell＠spunge.org -
Michael Hart -
Richard Poynder -
Robert Shimmin -
Scott Lawton