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« madisonian theory: on law, society, and technology » 2005 » January » 29 | Main | Copyrighting an Academic Paper »

January 31, 2005

Comments

Ed Condren, faculty member of Univ. of CA Standing Committee on Copyright

Dear Ms. Townsend,
I'm delighted to see that someone out there is motivated by a desire to preserve these "orphan copyrights." Everything else I've seen takes the intending second user's point of view. As a member (newly appointed) of the University's Committee on Copyright, I was recently asked to comment on the USCO's request that we all think about "orphan works" and comment. Our committee is contemplating sending in an "institution report." Everyone seems interested in protecting the second user. But it occurs to me that the language of the inquiry, and doubtless of the amendment to the copyright law if it comes to that, will make it ridiculously easy for an intending user to declare that he hasn't been able to find the copyright holder, keep a modest fee in escrow for three years, and evade consequences. I am similarly concerned that universities will begin collecting lesson plans and course outlines from the cadre of their extension lecturers, knowing full well who these lecturers are (or were), but use them in the future without a thought of the copyright owner's rights.

I've had a second thought related to the above. I note that the US Constitution says that "Authors and Inventors [shall have] the exclusive Right to their respective Writings and Discoveries, but says nothing about the anticipated financial rewards expected by some second user of these writings and inventions. The rationale for securing to the congress the power to protect this right is "to Promote the Progress of Science and the Useful Arts." In direct opposition to this congressional intent, the copyright law is now being used to achieve directly the opposite, namely to stifle the progress of science and the useful arts. I am referring to the outrageous subscription fees now being charged to libraries for the science journals that must be on hand for students, scholars, and researchers in the sciences. University libraries know they must subscribe to these journals and also know they cannot circumvent the law by xeroxing them. Hence, they have been responding to these prohibitive fees by letting their subscriptions in, for example, the humanities expire. Otherwise they would not have the funds to keep subscribing to scientific publications.

It seems, therefore, that the copyright law is being used to protect the financial interests of the publishers over the intentions of congress to "promote the progress of the sciences and the useful arts." I would welcome, and work to achieve, legal action against all these publishers collectively, brought by some distinguished university, perhaps the University of California, in order to right this severely listing ship. If you have any advice on these points I would be happy to hear them. Thanks. Ed Condren, Prof. of English and Medieval Studies.

Elizabeth Townsend

Thank you for the comments. Yes, the issues involving "orphan works" are complicated, and many focus on those works already created and orphans, and not the ramifications of works in the future that might be deemed orphaned.

I had not thought about the problem of adjunts and lecturers who are on the move, and who might be considered to have orphaned their works. Interesting point.

Also, as to the issue of the high price of journals, this is also such a big issue, although a bit different than the orphan work issue. Luckily there seems to be some movement to at least make people more aware of these problems.

But these two issues reflect the problems of copyright within the academic community. At once there is the creator of works, who may have their copyright taken away (possibly) by either claiming it as an orphan work or that the work comes under the work for hire doctrine (which had not been the traditional view. Traditionally teacher's owned their works under a "teacher exception" to employers owning what is produced during employment). And then there is the other side, where scholar's works in journals are sold back to them at ridiculous prices.

These are only a few problems.

There is the additional issue with "orphan works" when scholars want to quote or reprint archival and out-of-print publications, but the owners cannot be found. This can keep a scholarly work from being published at all becasue fair use doesn't seem to really work. This is what I am working on for the comments to the copyright office.

Thank you again for posting. Your comments are very much appreciated.

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