Saving the Artistic Orphans

Valuable resources are being lost to students, researchers and historians because of sweeping changes in copyright law, according to digital archivists who are suing the government.

These resources -- older books, films and music -- are often out of print and considered no longer commercially viable, but are still locked up under copyright. Locating copyright owners is a formidable challenge because Congress no longer requires that owners register or renew their copyrights with the U.S. Copyright Office.

Brewster Kahle, founder of the Internet Archive and Rick Prelinger, a film collector, want permission to digitize these so-called orphan works to create online libraries for free public access.

In a suit filed in March, the plaintiffs in Kahle v. Ashcroft argue that multiple changes to copyright law have essentially made it impossible for works to return to the public domain. They want to have these changes declared unconstitutional.

The copyright structure has changed so people no longer have to actively register and renew their work, meaning valuable historical resources stay protected by copyright, even though no one is marketing them. In the past, the scope of copyright was much narrower. When copyright expired, those works could then be used and built upon by future creators and were available to the public.

The law "imposes enormous burdens on speech without any countervailing benefit to anybody," said Chris Sprigman, a fellow at the Center for Internet and Society at Stanford Law School, who is representing the plaintiff. "It doesn?t benefit the public because it keeps creative works locked up, and it doesn?t benefit private rights holders because these works are out of print. These changes to the copyright law make it more difficult for rights holders to get some licensing income because it makes them more difficult to locate."

"We want some system in place to filter out works that have no reason for continuing copyright protection from works that do," said Lawrence Lessig, a professor at Stanford Law School who also represents Kahle and Prelinger.

The government recently filed a motion to dismiss the case. The plaintiffs filed an opposition to that motion, and the government will file its reply in October. Judge Maxine Chesney of the U.S. District Court, Northern District of California will hear arguments on the case on Oct. 29.

For most of the 20th century, copyright owners had to file a registration with the copyright office to secure copyright for 28 years. If an owner chose to renew, they received an additional 28 years. Those who failed to comply lost their copyright and the work went into the public domain, meaning anyone could use the work without permission, for free.

Copyright law was an "opt-in" system, Lessig said.

Decades later, the United States ended the registration and renewal process entirely in the Copyright Act of 1976. Now, as soon as a work is "fixed in a tangible medium" -- even something as innocuous as a doodle on a cocktail napkin -- the owner has copyright protection and never has to formally register or renew. The term of copyright was also changed to the life of the owner plus 50 years for new works.

Works registered before 1976 still had to renew. That changed again in 1992, when Congress mandated that all works pre-1976 were automatically renewed, locking up yet another group of works at a time when many would likely return to the public domain.

In 1998, the term of copyright was extended again to life of the author, plus 70 years.

These rules are especially frustrating now that the digital world makes it so easy to distribute content. Archivists say that digitizing these old books, photographs and films, for instance, could be a boon for research and education.

"Because of the indiscriminate nature of copyright today, the burden of copyright regulation extends to work whether or not the original author has any need for continuing protection," the lawsuit reads. "That unnecessary burden blocks the cultivation of our culture and the spread of knowledge."

Copyright was traditionally awarded to those who wanted to claim them.

"Formalities -- especially registration and renewal -- have historically been a part of the copyright law since the beginning," said Jason Schultz, an attorney with the Electronic Frontier Foundation. "The registration and renewal served the purpose of a balance in copyright law and it's a balance that's required by the constitution."

Data shows that on average, 85 percent of copyright owners never bothered to renew their copyright after the first 28 years anyway, said Sprigman.

The plaintiffs are currently collecting examples of orphan works to bolster their case. In one instance, a university seeks to digitize all the newspapers in the state, but for some of the defunct papers, it is impossible to know who owns the back issues, Sprigman said.

In another case, an editor would like to re-publish the essays of Dr. Leo Alexander, who wrote articles that dissect Nazi ethics for criminology journals, but the author is dead and his heirs haven't been found to grant permission. Schism, a monthly magazine of fringe literature from the late 1960s and early 1970s, is another puzzle where the copyright owner is unknown.

Critics charge the lawsuit is a re-hash of the arguments in Eldred v. Ashcroft, which challenged the length of copyright extension terms and lost in the Supreme Court in January 2003.

"I think they've come up with a creative approach to try and re-litigate these issues," said Allan Adler, vice president for legal and government affairs for the Association of American Publishers.

Adler said that while the AAP does not support the lawsuit, it is interested in addressing the problem of orphan works.

The copyright office is also aware of the issue, but declined to elaborate on what action to take: "We understand that people may not be able to find the status of a work and we'd be interested in looking at ways to deal with the situation," said Jule Sigall, associate register for policy and international affairs at the U.S. Copyright Office. "We have an open mind on the ways to address it."

Kahle hopes the problem can be solved soon.

"These works are important parts of our culture, and now that students are shifting to using the internet as their library, we want to make sure they continue to have the breadth and depth of what people have created," Kahle wrote in an e-mail. If the case loses, "the libraries that we grew up with will be effectively shut to this generation of kids that use the internet as a major source of information."