I’ve revised my blog post on The Orphan Wars into a short essay for the EDUCAUSE Review. It bears the same title, but I’ve updated it for the higher-education IT community. Here’s the new opening paragraph:

“Orphan books”—books that are in copyright but whose copyright owners can’t be found—have been in the news lately, thanks to lawsuits over Google’s plan to scan a copy of every book ever published. What started as a project to make a better search engine has gradually become a focal point for debate over whether the legal system can find a way to rescue the orphans from copyright limbo. Some of the libraries working with Google have announced plans to make available to their patrons digital versions of the books they think are orphans; an authors’ group has sued to stop them. In this column, I’ll review the convoluted history of the Google Books lawsuits, with an eye toward what they might mean for orphan books.

Uh actually, I thought that “orphan works” were legally either clearly copyrighted or with expired copyrights. The US records residing in the Copyright Office and where they can be checked to see what status the works have. It’s just that the entities who want to use them don’t want to bother checking. I am not a lawyer, but this seems to me entirely different from a copyright status “in limbo.”

Most copyrights are unregistered.

I thought the “orphan works” people are largely talking about are published books and periodicals, whose copyrights usually are registered. For US books and periodicals, there is usually a notice and date on the copyright page. I also thought that in the US, as in many other countries, a work does not have to be registered for it to be copyrighted. So I am not seeing that any of these works have a copyright status “in limbo.”

I’ve also never seen anything in US copyright law to say a copyright is in any way voided because the person or company who wants to republish the work or portions of it either cannot find the copyright owner or does not want to bother.

I thought the “orphan works” people are largely talking about are published books and periodicals

I’m actually embarrassed to admit that only now I am in the process of reading Free Culture by Lessig. Combining some of the data he gives, along with the discussion here at the Laboratorium, I’ve come to understand that with regards to preservation, the situation with respect to books and periodicals, even if far from ideal, is much better than that for film, television, or even music.

(I find it interesting that the WIPO Performances and Phonograms Treaty appears to grant performers the right to prevent “the fixation (recording) of their performance”; some creators here have argued from the analogy that their creations are like “their children” —- applying the same analogy, the WPPT is then, I suppose, legalizing “infanticide”?)

some creators here have argued from the analogy that their creations are like “their children” —- applying the same analogy, the WPPT is then, I suppose, legalizing “infanticide”?

Some live performers might argue that to record their work is to ‘kill’ it, by ‘fixing’ it in an unchanging (and hence deathlike) form.

Setting that aside, the provision Ron cites does, I imagine, protect artists against the making and distribution of unauthorised or ‘bootleg’ recordings made secretly during concerts, etc.

Gillian,

Lessig is a well-known opponent of copyright extensions, such as the Sonny Bono act which is commonly asserted to “kill creativity.” Problem is, the Sonny Bono act was passed into 1998. If there were to be some resulting diminished of production of creative publications, we’d have seen it by now. We haven’t.

Some live performers might argue that to record their work is to ‘kill’ it, by ‘fixing’ it in an unchanging (and hence deathlike) form.

I suppose these same performers would then be ecstatic if they could force their audiences to leave every performance through some kind of “neuralyzer”-thingy which totally erased the memory of the performance. Somehow, though, I don’t think that would be a good business plan.

Setting that aside, the provision Ron cites does, I imagine, protect artists against the making and distribution of unauthorised or ‘bootleg’ recordings made secretly during concerts, etc.

I see no reason why the protection they already have, namely copyright law, is not sufficient, and justifies enabling artists to deny future generations the enjoyment of their preserved performances (I’m optimistically assuming that there also would exist some kind of exception to copyright law which enables recording for the purpose of such preservation, and that the recordings will, eventually, enter the public domain).

I suppose these same performers would then be ecstatic if they could force their audiences to leave every performance through some kind of “neuralyzer”-thingy which totally erased the memory of the performance. Somehow, though, I don’t think that would be a good business plan.

Some performances are sacred. Some sacred performances may not be recorded because only certain people are allowed to witness them, or because it is held to be dangerous to perform the music/dance outside a ritual context. To talk of ‘business plans’ in such a connection would be a vulgar irrelevance.

In a different cultural context there is the case of the modern American composer John Cage, who held that ‘if you want music to come alive, then you must not can it’.

Gillian,

US Copyright law does in fact forbid making sound and/or video recordings without permission of the performer, teacher, or whoever. From a business point of view, often performances or classes do not make enough money to sustain the performer or teacher, who may well make and sell recordings to be able to make a living.

There are other considerations as well. I used to be a dancer and dance teacher. Many students do not want to have to worry about being videod while they are trying to concentrate on learning the material. Nor do they want the errors dancers frequently make in classes (and rehearsals) to be recorded for posterity and/or publicly displayed. Furthermore, there is something about dance that brings out people’s insecurities. Dancers do not want to be recorded arguing with their partners about who caused a screw-up, or being catting about the abilities of others present.

A point of information: the federal anti-bootlegging statute applies only to live musical performances.

On the issue of unauthorized live recordings of other kinds of performances, though, I have a lot of sympathy for Patton Oswalt’s desire to have a safe space to experiment with material in front of an audience before he performs it for real. This also resonates with me as a teacher: I have colleagues who say that they teach less effectively if their class is being recorded. Even a “public” performance can implicate a kind of privacy value: something special happens in the room that’s shared between those actually there, and to allow live recordings is to allow anyone present to decontextualize what happened.

To add to what Gillian was saying about “sacred” performances; The only significant ‘copyright’ action in involving Australian Visual Artists ( that I know of) was an legal action by indigenous artists to prevent the use of sacred images as carpet patterns.

Ron ‘mechanical reproductions’ are not the same thing as memories of a performance. Too much of reproduction can turn a uncommon experience into a every day barely registered experience. Personally, no amount of reproductions can come near to the experience of remembering what it felt like to stand alone in a cold room, in a small town on the eastern edge of Tuscany and stare and stare in wonder at Pieros painting of the Resurrection.

James,

I thought the laws regarding model releases effectively cover people moving (videos). Am I wrong?

There are privacy and publicity rights, yes, but they add up to something much less than a full right against recording. The privacy rights don’t generally apply in public, and the publicity rights don’t generally apply to noncommercial uses. The practice of getting model releases (as photographers do) is a good way to minimize legal risks, but frequently they give permission for something the signer wouldn’t have had a right to stop.