Friday, January 5, 2007

A Bright New Year--Maybe

I, for one, am enjoying the fantasy of some transparency in government now that Congress has changed hands.

What will be interesting to see is how things move along with the "orphaned works" provision bill. Congressman Howard Berman will chair the responsible committee in the House. In the past, no changes happened in copyright law without all the interested parties agreeing. More recently, this has not been the case and careful balances have been upended.

I first met Congressman Berman around 20 years ago, when I lived and worked in D.C. I met with him and and some of his aids when I was on the ASMP Board and helped to set up the Copyright Justice Coalition. I've had the opportunity to meet with him a number of times over the years and I've always found him responsive to the needs of the creative community. He was a guest speaker for me when I was the chair of the entertainment section of the Beverly Hills Bar Association and I called on his office for advice when I handled Harlan Ellison's lawsuit against AOL. I hope that he will see the folly in the proposed legislation (assuming it is to be reintroduced this session of Congress when there are so many other pressing matters.)

As I understand it, the falacy on which this legislation rests is that it is impossible to find the authors or copyright holders of many works. Even if this is true in a few cases, the Internet has really made it far easier to locate artists and writers. I cannot tell you the number of times I've been able to find contact

But greed makes corporations and other individuals want to be able to use the work of creators without the bother and expense of licensing, hence the smoke screen that there are huge numbers of ophaned works--as opposed to works legitimately in the public domain--in existence. Corporations sure don't want any of their properties to fall into the public domain--Disney spent a fortune making sure that Micky Mouse is still all theirs by pushing a law that prevented the mouse from hitting the PD four years ago. Such corporations have spent years (probably more than the almost 30 years I've been watching) telling Congress the balance of copyright is between the rights of creators and the rights of publishers (using that term in a very broad sense), but the plain language of the text of the U.S. Constitution says Congress has the power "To promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and inventions." Neither publishers nor corporations are mentioned. Authors and inventors are supposed to benefit the greater human condition by being compensated for what they do.

I think Congress should give some thought to reining in the concept of "corporation" as "person." So often under the law, coporations get the rights, but not the duties or other obligations of personhood. I'd love to see that equation change.

Copyright booster I may be, but I really see no reason for the last increase in copyright term because it benefited corporations with no apparent benefit to the actual creators of works or their heirs. The 1976 Act had real benefits for the creators and heirs.

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