Jerry Brito

Who’s your daddy?

Bridget Dooling and I have an article in this weekend’s Wall Street Journal. It’s the Rule of Law column and, not surprisingly, it’s on orphan works. Here’s a bit:

Fiddling with copyright terms and registration, however, would require not only the abrogation of several international intellectual property treaties, but also the political will in Congress to stand up to movie and publishing lobbies. Luckily, a much simpler solution is possible, and an orphan works component can be snapped into the existing copyright system. Congress can create an affirmative defense–along the lines of fair use–for those who copy a work after trying unsuccessfully to locate the copyright owner.

March 26, 2006 | Comments |

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    There will never be a clear, legal definition of "trying unsuccessfully to locate the copyright owner." We need to require copyright ownners to register in one of a very few lists so they can be found.

    Oops - what happenes to anonymous works?
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    I agree that registration would be the most sure-fire way to ensure that works don't become orphans. However, adopting registration would require the U.S. to pull out of the Berne Convention and other international treaties. That's not going to happen. What we aimed to do was provide a politically feasible solution.

    There might never be a completely clear legal definition of what qualifies as a reasonable search, but there can certainly be a definition that is good enough. There is no metaphysically certain definition of what a reasonable person would do in negligence, but we manage to apply that standard successfully every day.

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