How to Solve the Berne Problem, Part 1

By Kevin Smith, Scholarly Communications @ Duke

The conference on Orphan Works & Mass Digitization, hosted by the Law School at the University of California, Berkeley last week, was exciting — at least to the 230 copyright geeks like me who attended — and filled with well-researched papers.  The three White Papers that were prepared by the Samuelson Law, Technology & Public Policy Clinic (written by former Duke Scholarly Communications Intern David Hansen) are well worth reading.  In this first post I want to look at a basic terminological issue and then focus on two general observations from the event.  In a subsequent post I will describe three specific suggestions made by conference speakers for solving the orphan works problem.

It is the phrase “orphan works problem” itself that sparked terminological debate.  Several speakers were uncomfortable with that expression, and an alternative – “hostage works” – seemed to gain some traction among participants.  But the suggestion that really got to the root of the issue was that we should refer to the proliferation of works still in copyright protection but for which no rights holder can be located as the “Berne problem.”  This is appropriate because the problem was so severely exacerbated by U.S. adherence to the Berne Convention in 1988 and the legislative changes that that decision required.  Four steps contributed significantly to the problematic situation we are currently in:

  1. The move to automatic protection, which often makes people into rights holders against their will and without their knowledge,
  2. Copyright term extension, which inevitably makes heirs or successors-in-interest into rights holders, again often unawares,
  3. The end of the renewal requirement, so that rights holders no longer have a chance to indicate their continued interest in a work; thus no “abandoned” works move any longer into the public domain,
  4. The end of the registration requirement, which now makes locating rights holders so much more difficult.

The combined effect of these changes to U.S. copyright law, all accomplished between 1978 and 1989, has been to create a huge class of orphan works.  So it is not surprising that many of the suggestions for how to deal with the problem pushed toward reversing or mitigating some of these changes.  Registries, for example, were a common theme; under these various proposals to create registries to assist in finding copyright holders for different types of works, we would simply be recreating (hopefully more efficiently) the registration database of the Copyright Office, which once could claim mandated comprehensiveness but unfortunately can do so no longer.