Little Orphan E-books

Little Orphan E-books

I’ve written a number of times in the past about “orphan books”.

Those are ones that are still under copyright, but where potential publishers can’t find anybody with whom to negotiate for the license to publish the book, so it stays unavailable to the public.

In fact, orphan books regulation was one of the things I mentioned a couple of years ago in

Five things the USA can do to help e-books stimulate the economy

I keep hoping to see legislation passed that would find a way around the dilemma and thereby legally get more older books into the market.

Well, according to this

Publishers Weekly article

it appears that it won’t happen soon.

The Copyright Office has recognized that orphan works represent “…a major cause of gridlock in the digital marketplace”.

You can read comments submitted when the Copyright Office raised the issue in late 2012


It’s obviously a tricky issue, but I do think the weight is falling towards some sort of solution, and that we’ll get it eventually.

There are, in a sense, four strong positions at work here.

One is basically the creators’ rights to control the use of their content (within copyright limits), even if that means the public doesn’t have access to it. It says that the principal of ownership of intellectual property is supreme, and even when the creator of the work can not be contacted, actions can not be taken without permission.

A second is an economic driver. There is money to be made and sales are being lost because a book can’t be republished…even though people want it. The publishers with this position are not saying that the author shouldn’t be compensated if they can be found. They are saying that if the author can’t be found after due diligence, the book should be able to be published, and the author will get paid if they show up and claim (and prove the right to) royalties.

A third position is the one that says that society has the right to literature and nonfiction works created within it, after reasonable compensation has been made to the author. This doesn’t necessarily say that there shouldn’t be copyright at all, but that, when in doubt, a book should be made available, not withheld.

The fourth one is an interesting fork in interests. This is the strengthening of Fair Use, in this case meaning that being able to read a book from a library might be okay when publishing it for profit isn’t. That puts the libraries potentially in a position of arguing against orphan work release. If the libraries have the books and the bookstores don’t, it’s a plus for the libraries.

I have explored the idea of much broader Fair Use before. I suggested in one of my least popular articles 😉

Should copyright be permanent?

that it might be possible to make “societal benefit use” free, in exchange for permanent copyright for commercial purposes. A school would be able to use the latest pop hit in a classroom in order to analyze the music without paying a royalty, for example.

One proposed solution to orphan works is to create a collective registry, where royalties are paid into a big pot (if you can’t find a rightsholder) and sit around waiting for someone to claim them.

That does amount to publishing without permission, and you can easily see how it could create a huge expensive  bureaucracy  that becomes a massive and significant entity in itself. It could have millions of dollars that just sat there, while every once in a while, an author (or a descendant…copyright extends beyond death, generally) showed up and collected a few bucks from it.

I’m not sure what the right answer to this is, but I think we’ll find one in the next ten years. I know that copyright infringement prosecutions can be a pretty profitable “business”, and that might be something else that works against orphan books legislation.

Years ago, I knew someone who said they made their living this way.

The person was a lawyer. They’d go out to local bars, and write down the songs that the band played. They’d get contact information for the band.

The lawyer would send a bill for the royalties.

The band would pay up (being threatened with much more onerous consequences if they didn’t), and the lawyer would turn it over to the rightsholders, getting paid what amounted to a “bounty” for the work.

The lawyer owned a decent house…

What do you think about this? I think the broader question is, how does copyright need to be reformed generally, if it does? It is virtually impossible to control reproduction and distribution at this point…very different from what it was even fifty years ago (much less when copyright was conceived). Does making something legal which was illegal result in an ability for the creator to get compensated (which in turn results in taxes for the government)? Is there a parallel to legalize drugs…the government doesn’t profit from illegal drugs (and indeed, spends a lot of money trying to enforce laws), but makes a lot of money from legal substances (like alcohol and tobacco)? Of course, the drugs are a different story, because they also can cause expenses for the government (in healthcare, for example). How would you fix copyright, if you think it is broken? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

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