Thanks for the link, David.
Reading the blog, however, I find much speculation about orphaned works and the potential pitfalls and possible resolutions, but what I read in the original article as the more dangerous issue is the possible privatization of copyright registration as a means to reduce the possibility of works becoming orphaned in the first place. In
this response from The Competitive Enterprise Institute to the government's investigation into orphaned works (available from the U.S. Copyright Office), they state that "[a] compulsory registration requirement would go against the requirements of the Berne Convention for the Protection of Literary and Artistic Works. However, this treaty does not preclude
private (italics mine - Ptrope) registries. Private registries that are not compulsory but have legal recognition might provide the proper incentives for creators to register their works, thus diminishing the future instances of orphan works." Further reading reveals that only the
difficulty of quantifying the registration makes compulsory registration an issue at this time; the recommendation includes an analogy to domain name registration, which
is compulsory. My personal view of this is that these registries may not be compulsory, but if they are enacted and enabled, failure to utilize them to register one's work would make it considerably more difficult to contest an infringer's "good faith" failure to locate a copyright holder before infringing the copyright. No pitchforks involved, just an observation of how the trends run in the legal circles (I've worked for litigation support companies for nearly 12 years, and do now - I see this every day).
The U.S. Copyright Office's website addresses Orphaned Works legislation
here. I'm new to this issue, having been first exposed to it today in the article I linked. Reading "Radio Free Meredith's" blog, I wouldn't be quick to dismiss the potential issues raised in Mark Simon's article, as I find many of her arguments to be of the "I don't expect it to happen" variety, rather than backed up by current facts; she is correct about the
current state of copyright law, but I've seen far too many corporate assaults on U.S. copyright law, particularly since the advent of the Internet and the DMCA, to think that this is an impossibility. Copyright, at this moment, does far more to protect publishers' bottom lines than creators, and I can easily see a move to private registries resulting in creators bearing more of the burden of proof, starting with the act of registering with the private firms, than infringers would be expected and required to bear.
