EFF and Public Knowledge have just set up Orphan Works, an organization dedicated to finding a way out of our current mess where works may have been out of copyright for years, but there’s no way to know because nobody (including the Copyright Office) knows who to ask:
What are orphan works? Orphan works are — broadly speaking — any copyrighted works where the rights-holder is hard to find. Because the cost of finding the owner is so high, creators can’t build on orphan works, even when they’d be willing to pay to use them. In many cases the works were abandoned because they no longer produced any income. In most cases, rights holders, once found, are delighted to have their work used.
The Copyright office is asking for public comment on the orphan works problem until March 25th (you can fill out the form at orphanworks.org). Even if you’re not an artist or filmmaker or the like, this issue probably affects you more than you’d at first think. Here’s the comment I just sent in:
My story is simple, but I expect it’s a common one. I’ve been learning to play piano and I love old music. My uncle gave me a photocopy of sheet music for a 1934 parlor piece that my grandfather used to sing, I found copy of Scott Joplin’s original 1902 score for The Entertainer, and a friend who collects old music gave me a photocopy of her antique sheet music to a 19th-century music-hall song. I’ve scanned them all on my home scanner and I’d like to put them on the Web for others to download, but I’ve no way of knowing if these are actually out of copyright. Plus, copyright holders are so aggressive these days that I’m afraid even if these pieces are in the public domain someone might convince my ISP to shut down my account under the DMCA, and if that happened there’d be no good way for me to prove I was in the right. So instead, I just gave up and have kept these scans to myself. It’s just not worth the risk to share with others.
Update: Larry Lessig has some pointers on writing comments (e.g. be nice, these guys are overworked) and stories people have submitted over at eldred.cc.