Fair use and orphan works

Kim Weatherall has been thinking about the problem of orphan copyright works with the aid of the writings of Richard Posner and William Patry.

"In further thoughts on fair use, I was just flicking through an article by Richard Posner and William Patry on fair use in the wake of Eldred (William A. Patry and Richard A. Posner, 'Fair Use and Statutory Reform in the Wake of Eldred' (2004) 92 Cal L Rev 1639)...

Patry and Posner do two things I like in this paper. First, they tell some great fair use/copyright overclaiming stories. Since I can't resist, here's a quote:

'Recently the New York Review of Books published a newly discovered notebook entry by Virginia Woolf, and a note at the end of the article states: "Copyright © 2003 by the Estate of Virginia Woolf. No part of this text may be reproduced without the express prior consent of Hesperus Press." No part? That is ridiculous. A journalist, biographer, literary critic, or historian writing about Virginia Woolf would be entitled by the fair use doctrine to quote a brief passage from the article. The note is pure bluff, but a public-domain publisher threatened by a lawyer representing Hesperus Press with legal action would think twice about publishing even the briefest passage without consent...In Margaret Atwood's recent novel Oryx and Crake, the author thanks "John Calder Publications and Grove Atlantic for permission to quote eight words from Samuel Beckett's novel, Mercier and Camier." Eight words? Please."

OK, light amusement aside, there is a serious point to Patry and Posner's article. The second thing that Patry and Posner do is suggest that we deal with the orphan work problem (the problem of old works, where we can't find the copyright owner, and so can't get permission to use a work) using a 'fair use' argument. They argue this could be done simply by interpretation of the existing, inclusive definition in the US Act, as follows:

'The correct balance is struck, ...by imposing a duty of reasonable inquiry on the would-be copier. The satisfaction of that duty would require him to determine, as by hiring a reputable service that specializes in tracing people, whether the person indicated on the copyright page or in other records known to or readily available to the would-be copier as the owner of the copyright was, if an individual, still living, and, if a firm or other organization, still in existence. The would-be copier would be required to seek a license from that individual or entity unless the search, though properly conducted, had turned up nothing--had failed to discover a copyright owner from whom the would-be copier might try to negotiate a license--in which event the copying of the work would be deemed a fair use.'

Not only would this solve the problem of the old works. It would also, they argue, provide incentives for the creation of a proper registry, where people wanting to claim fees for use of their material would have incentives to register themselves"