Solving the problems around Orphaned Works and copyright terms

The following is a letter that I sent to key members of parliament.

Dear Bev Oda, Minister of Canadian Heritage,
Ms Christina Keeper, Liberal Heritage Critic,
M. Maka Kotto, Bloc Heritage Critic,
Mr. Charlie Angus, NDP Heritage Critic,
Mr. David McGuinty, MP for my riding of Ottawa South,

While I often write members of parliament about harmful proposals which take the right to control information technology away from their owners, there are other Copyright related issues which we should also be addressing.

I recently watched a presentation by Lawrence Lessig about the Orphan Works problem. You can see the description and a link to the video at:

While Mr. Lessig was presenting about a recent proposal made by the US Copyright Office that would affect US copyright law, we have similar problems in Canada. While the US Copyright Office was proposing that the copyright holders rights be curtailed after a“reasonably diligent search.”, the Canadian system isn't much better. We currently allow the copyright board to offer a non-exclusive license for an unlocated work, with a process that is about as complex and costly as the US proposal.

In both the US and Canadian situation the copyright holder can come forward at a later date and refuse permission, or be granted after-the-fact royalties. Neither system creates certainty, both require expensive lawyers and researchers to be involved, and both have no consideration for derivative uses of these works which use methods of production, distribution and funding which use fixed one-time fees rather than marginal costs (AKA: monopoly rents, royalties, etc). The largest growth areas for software as well as scientific, health and educational material is from open, collaborative and royalty-free methods.

The system Lessig offers as an alternative is much simpler, and is similar to what I have been proposing as well. While Berne doesn't allow for copyright "formalities", Lessig clarifies that this only applies to foreign copyright holders and there is no limitation over requiring things such as registration for domestic copyright holders.

I would add to this that while requiring registration to receive any copyright at all is a formality, that requiring a renewal after an initial shorter term of copyright is not. Berne was authored at a time that pre-dated modern information and communications technology, and was based on what is now an invalid assumption about the costs to copyright holders to having a registration system. If done properly a renewal system would cost copyright holders orders of magnitude less than what not having such a system is costing them now. If we no longer need to hire expensive lawyers to do copyright clearance, and are able to easily determine with a Google-like search service who to contact for copyright clearance (and what public licenses the work is already offered under), then copyright related costs for creators will decrease considerably.

My proposal is simple: copyright holders automatically receive, with no formalities, a 14 year copyright. After 14 years, possibly in a multiple of 14 years for some maximum number of renewals, copyright holders would need to renew their copyright, clearly registering their work so that searches for the work to find the copyright holder will be easy.

Allowing renewals of copyright to allow heirs to renew copyright for 4 (56 years) or 5 (70 years) 14-year time periods after the authors death becomes a much more reasonable situation than what we currently have. The proposal would also solve the critique we have against recent proposals to radically change the copyright around photography.

As Mr. Lessig includes in his concluding remarks, if Copyright is to regulate the activities of the average citizen, rather than just professionals, then the law must be understandable by this average citizen without needing to hire a lawyer. I believe the Canadian section 92 report had the priorities entirely backwards, with "clarifying and simplifying the act" needing to be the first priority, not the last.

I hope that Canada can consider a modernization of our system to solve some of the problems our current antiquated system is causing. I hope you will consider listening to Lessig's presentation as a motivation to helping Canada do our part to solving the problem. I also hope that we can direct our representatives at WIPO to work towards treaties which would modernize Berne to encourage other countries to fix these problems in their own countries.

Thank you.

Russell McOrmond