For update on Senate bill, see comments below.
The PRO-USE Act (H. R. 24) may seem like a small bill, but the more I think about it, the implications may be greater than they appear, and the implications are good. It gets the problem of at least some orphan works to the attention of Congress, and the bill would help libraries and others.
Perhaps you remember the small orphan bill that died quietly last term. I say small, since it doesn't come close to embracing the totality of the orphan works problem - great stuff written by dead people, languishing in library collections that yearns (in my humble opinion) to be put on the web.
I say small, since this bill addresses only the last twenty years of copyright (see the yellow column in my chart).
I say small, since this bill seeks to fix a technicality - that is return the musical, pictorial, graphic and sculptural works that were inadvertently left out (apparently a drafting error) when the Sonny Bono Act added twenty years of copyright term and partially returned them to libraries, archives, and some nonprofits under a set of conditions:
(A) the work is not subject to normal commercial exploitation;
(B) a copy or phonorecord of the work cannot be obtained at a reasonable price;
(C) the copyright owner or its agent has not provided notice to Copyright Office
I say small, since no one knows what "normal commercial exploitation" means, and quite frankly, risk averse institutions are not making use of this anyway. As a consultant I always urge people to use this provision.
And that's where I think the implications of this small bill are actually quite heartening. Howard "Hollywood" Berman (CA) is sponsoring HR 24, with John Conyers (MI) and Zoe Lofgren (CA).
The implication, I think, is that film preservationists are willing to use the provision (once it's extended to films), despite the wretched "normal commercial exploitation" language. Film copyrights are the absolute worst, what with underlying music, performance rights etc.
If they are going to the trouble of lobbying for this correction, and willing to use it, libraries should use works in those last twenty years too. And libraries are already legally covered for all works except musical, pictorial, graphic and sculptural works. That means they should be digitizing those church bulletins, newsletters etc.
Of course, none of this applies to unpublished works. We should push for their return to libraries too. And we have a chance to do so: as followers of the orphan issue know, the Copyright Office recently asked for our comments about orphan works, due March 25th.
For HR24 and for Howard Berman's remarks in Congressional Record January 6...
