Fantastic Fiction's Fading Heritage

"It will be a terrible waste if the stories from the pulp era vanish because of this issue." (Science Fiction and Fantasy Writers of America, Inc. [SFWA], 2005, p. 9)

Because of the way copyright law is set up in the United States, it can be difficult or impossible to locate copyright owners for protected works going all the way back to the 1920s. Without a way to ask permission to reprint these "orphan works," they tend to fade out of culture and sometimes out of physical existence. Science fiction and fantasy literature grew into their modern forms in the 20s through 50s, but many of these genre-developing works are unpublishable orphans. No one is reading them or receiving royalties from their sale.

This paper will look at how copyright law created the so-called "orphan works problem" and how the Science Fiction and Fantasy Writers of America responded to the U.S. Copyright Office's call for comments on the situation.

Peer Pressure

In 1866, most of the major European powers signed an international copyright agreement in Berne, Switzerland. The Berne Convention for the Protection of Literary and Artistic Works (or simply the "Berne Convention") required its members to respect the rights of other member nations' authors as if they were domestic authors:

"Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention." (Berne Convention for the Protection of Literary and Artistic Works [Berne Convention], 1979, art. 5)

The Convention disallowed any sort of requirement that authors register their works or stamp them with an official declaration before being protected by copyright:

"The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work." (Berne Convention, 1979, art. 5)

A little over 120 years later, the U.S. finally signed on when Congress passed the Berne Convention Implementation Act of 1988. Why wait so long? One major issue was the "no formalities" clause quoted above. U.S. copyright term was also far shorter than the Convention's minimum of 50 years after the death of the author (Berne Convention, 1979, art. 7). In 1866, U.S. copyright worked like this (Peters, 1850, p. 436-439):

• 28 years of copyright, from the time the title of the work was properly registered.
• Plus a 14 year extension, if re-registered within six months of the original expiration date.
• So long as the correct notices are given in the book and in a newspaper...
• ...and a copy is put on deposit with the government.

Immediate adoption of the Berne Convention would have been an abrupt change in both duration and scope of copyright protection. In the meanwhile, the U.S. did sign the Buenos Aires Convention of 1910, which provided mutual copyright protection in much of North, Central, and South America and did allow formalities. To accommodate the U.S. (and other nations refusing the Berne Convention), a compromise was created in the form of the 1954 Universal Copyright Convention, which was widely accepted by the United States, Latin America, and Berne Convention members. By the 1980s, U.S. copyright worked like this:

• Protection for the life of the author, plus 50 years after death.
• Registration "is not a condition of copyright protection." (Copyright Act of 1976, Sec. 408, 1976)
• Registration may still be required before suing infringers.

It was no longer a big leap to achieve conformity with Berne Convention standards. In 1989, the United States officially joined the Berne Convention.

The Trouble With "No Formalities"

For most of American history, copyright formalities put a substantial burden on authors, with several opportunities to slip up and lose protection:

"Given the complexity of these formalities, the cost of compliance was not trivial, and the consequences of noncompliance were severe. Failure to comply would result in copyright failing to arise (registration), being unenforceable (notice, deposit), or being subject to early termination, with entry of the work into the public domain (renewal)." (Sprigman, 493)

To a certain extent, the Berne Convention's push to remove formalities made sense as a way to more reliably protect authors' rights. It also fit with a popular European view that copyright is a kind of moral right which comes into existence the moment a work is put into a fixed form. Legal copyright would therefore serve to recognize and enforce a pre-existing moral copyright. Contrast this with the U.S. Constitution's utilitarian (goal oriented), positive (created by law) characterization of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (art. I, § 8, cl 8). This allowed the U.S. government much more leeway on crafting law to promote these specified public goods. Requiring registration was a way to ensure that some official information was recorded about each copyrighted work; requiring renewal was a way to ensure neglected works would enter the public domain more quickly...or at least that the official information would be updated. The details of compliance were arguably too burdensome, but the removal of formalities has led to other problems.

Despite continued growth in writing and publishing, now-voluntary copyright registration has leveled off (Sprigman, 2004, p. 496):

And now-voluntary renewals are on their way to extinction (Sprigman, 2004, p. 498):

This means a smaller and smaller proportion of the kinds of works that were traditionally registered are being registered. And of these, an even smaller proportion are being renewed. By comparison:

Old Way

• Many works never under copyright because their creators did not consider them worth the trouble of registering.
• Registration records exist for copyrighted works.
• Renewal records exist for works under extended copyright.

New Way

• All works under automatic copyright, including poems in notebook, blog posts, personal song recordings, dance routine descriptions, etc.
• Registration records might not exist for copyrighted works.
• Renewal records probably don't exist for works under extended copyright.

What's the problem with this? The chance of relatively recent works becoming "orphaned" has greatly increased. A work is orphaned when locating its copyright owner becomes prohibitively difficult or outright impossible. Publishers can't reprint it. Creators can't seek permission to use it or adapt it into new works. And, of course, authors and their heirs miss out on potential income. When authors cannot be located, everyone loses.

Amazing Stories and Weird Tales

In a sense, there are two orphan works problems. The removal of formality requirements in the late 1970s — as preparation for joining the Berne Convention — has caused a problem with contacting the owners of unregistered or unrenewed works. But there was already a problem with official information falling out of date. A novel published in 1923 and renewed in 1950 is still under copyright until at least 2018. The name of the person who renewed it 62 years ago might not sufficient to discover who owns the copyright in 2012.

Think of these as the "no official records" and the "outdated official records" orphan works problems. One area of literature strongly affected by these problems is modern fantastic fiction, here defined as the science fiction and fantasy genres. A little history:

Science fiction and fantasy both got their start in the age of universal public domain (i.e. before 1923). Jules Verne, H.G. Wells, and Edgar Rice Burroughs were especially effective pioneers of science fiction from the 1860s through the 1910s. Fantasy fiction goes back to folklore, but it began its transformation into modern fantasy from the 1850s through the 1910s in the works of George MacDonald, Lewis Carroll, and L. Frank Baum.

Interest in these genres greatly expanded in the 1920s with the rise of pulp magazines offering monthly short stories on the cheap. Weird Tales began publishing fantasy and horror stories in March 1923. Amazing Stories began its run of science fiction stories in April 1926. Other pulp magazines hopped on the bandwagon and public interest in these genres continued to grow, spurred on by the publication of now-classic novels like Brave New World (1932), The Hobbit (1937), The Sword in the Stone (1938), Foundation (1942), 1984 (1948), and The Lion, The Witch, and the Wardrobe (1950). These novels and certain pulp stories like those of H.P. Lovecraft have been nearly continuously republished, but copyright owners for many lesser-known works published from the 1920s to the 1990s are difficult or impossible to locate today.

"There are scores of dead writers whose work is gone and forgotten because there is no one able to take responsibility for the rights. I bought a story from the estate of Richard McKenna a few years ago. The woman from whom I acquired the rights was his aged sister-in-law or someone like that. If that woman doesn't pass the rights on to someone else and let anyone know about it, Richard McKenna's work will not be reprinted for what, another 30 years? Do you really think anyone will remember who he is then? They barely remember him now.

Gerald Kersh is another example. I spent two years trying to track down rights to no avail. Someone who is a Kersh aficionado tried for two years before me. I finally was able to publish a couple of short stories by him via quasi legal means that protect my company from litigation. Kersh was a terrific writer and his stories deserve to be read.

That's why there is a problem." (SFWA, 2005, p. 9) [with minor corrections]

Pulp stories in the 20s and 30s. McKenna and Kersh in the 60s. The "outdated official records" problem is smudging out the fine lines of fantastic fiction's development, leaving only the thickest strokes. This would have been a problem even without the lifting of copyright formalities. Today, the "no official records" policy is compounding the issue:

"Since works are given copyright protection the moment they are written, there is no ready way to find authors to seek their permission to republish material, and the penalties for infringement are high, there is a lot of material that cannot be republished because the authors are essentially unlocatable. That is, the cost to locate them, if they can even be located, is often too high to justify the use of the work. Factoring in the 95 years / Life+70 years duration of copyright, a large amount of work is likely to be unrepublishable for over a hundred years and possibly lost altogether." (SFWA, 2005, p. 1)

In 2056 — the same distance into the future as the publication of Gerald Kersh's Nightshade & Damnations in the past — an editor may want to include a short story from 2012 and have even less hope than the publisher quoted above because the story was never officially registered.

Fantastic Fixes

On January 26, 2005, the U.S. Copyright Office put a notice in the Federal Register, asking for "written comments from all interested parties" on the topic of orphan works.

"The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be." (Orphan Works, 2005)

The Copyright Office received over 700 initial responses from individuals and organizations! One of the "interested parties" was the Science Fiction and Fantasy Writers of America. The SFWA (as it's abbreviated) put out its own call for comments. Some of the resulting anecdotes are cited above. After lively internal debate, SFWA's formed-for-the-occasion Orphan Copyright Committee agreed on a set of seven proposals "felt to comprise a feasible solution to the problem and a dramatic improvement over the current situation" (SFWA, 2005, p. 2).

These proposals can be roughly organized into three themes: modernizing and simplifying the registration process (#1, #3, #5, #6), creating a legal path to using orphan works (#2, #3, #4), and issuing guidance on "succession of copyright interests (#7). To simplify even further, the proposals seek to make orphaning less likely to occur, and to open the remaining orphan works for responsible use.

SFFA's main recommendation for improving registration is the establishment of an Author Information Directory. This would be an online database that offers free or nearly free account setup for authors to enter information about their works and keep their contact information up to date. Authors could be encouraged to include at least the first 100 words of their works and would have the option to add notarized forms or digital signatures to verify their identity. From the point of view of authors, the directory would serve the dual function of providing more opportunities for royalties and of eliminating the chance of their works being used under the new rules for orphan works.

What new rules? After conducting a search according to guidelines drawn up by the Copyright Office, followed by a multi-month posting of public notice, publishers could pay into an escrow fund at a common rate for similar works. Such works could then be published for a limited time without fear of lawsuit. Authors who later come forward would simply be able to claim the funds already set aside for this purpose. Publishers who don't follow these guidelines would be fully at risk of current legal remedies for copyright violation.

Congressional (In)action

After taking comments from SFWA and hundreds of other groups, the U.S. Copyright Office issued a Report on Orphan Works to summarize concerns and give its own proposed solutions. The Copyright Office rejected calls for any kind of new database, worried that it would be too "burdensome" at this time, but recommended revisiting the question in ten years. Also rejected were the calls for specific search guidelines (libraries and archives opposed it), an escrow system (too complex), or a public notice requirement (publishers were against it). The Copyright Office did recommend legislative changes to limit legal remedies to "reasonable compensation" when copyright infringers are able to prove they had conducted a thorough search.

"The term 'reasonable compensation' is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced." (U.S. Copyright Office, 2006, p. 116)

This compensation would not apply to non-commercial users, who would only be required to cease infringement activities immediately (U.S. Copyright Office, 2006, p. 13). The report ended with recommended legislative language.

From 2006 to 2008, several bills made their way through the House and Senate, based on the Copyright Office's report. The most successful bill was the Shawn Bently Orphan Works Act of 2008  which passed unanimously in the Senate. A similar bill, the Orphan Works Act of 2008, stalled out in the House.

The Senate bill echoed the Copyright Office's recommendations about limiting legal remedies to "reasonable compensation," and waiving even this compensation if the infringement was (1) non-commercial,  (2) "primarily educational, religious, or charitable in nature," and (3) stopped on receipt of a valid claim of infringement. Also following recommendations, the bill required evidence of a "qualifying search" before infringing, plus clear attribution while infringing. The Senate bill added a requirement that a new symbol for orphan works be created and used to label such publications (S. 2913 § 2).

The House bill's most controversial difference was the requirement of a "notice of use archive": a database where users of orphan works must document the work they are using, what steps they took to locate the copyright owner, how the work be used, and contact information for the user (H.R. 5889 § 2). Prominent library groups opposed this requirement on the grounds that it would be too burdensome on large organizations wanting to use many orphan works (Adler, 2008). Some artists opposed the archive because they believed it would be too friendly to large organizations wanting to use many orphan works! There appears to have been a significant amount of misinformation going around in artistic communities at the time (Huttler, 2008).

The whole issue has been effectively shelved by Congress since 2008.

Attack of the Powerpoints

In April 2012, the Berkely School of Law held an orphan works symposium. Among the ideas floated during these talks was Jennifer Urban's suggestion that existing Fair Use law might be applicable to orphan works (2012). One of the four factors of Fair Use analysis concerns the "nature" of the copyrighted work, but what this means, exactly, is not spelled out in federal law. Urban cited cases where availability played some role in Fair Use decisions and argued for expanding this line of thinking to explicitly cover orphan works.

Lydia Loren advocated a change in metaphor: rather than continue using the term "orphan works," labeling them as "hostage works" would emphasize the way these are "works that are held hostage by the complexity of our copyright system. By its duration, by its lack of formalities, and then of course, coupled with the absentee owner" (2012, 2 min). Under this metaphor, users might be seen as hostage-liberators rather than orphan-exploiters. Loren also showed a troubling graph from a talk by Paul Heald (2012, 12 min 45 sec):

The main lesson to draw from this graph is that books in the public domain from before 1923 are still very popular. Same goes for recent books under copyright. It's that dip from the 20s through the end of the century that shows a severe under-representation of what was written in those decades. New works do have novelty going for them; public domain works tend to have low prices going for them, thanks to both the lack of royalties and competition. So while a moderate dip is only to be expected for older, copyrighted works, it's very likely that the orphan works problem has aggravated the situation.

Notice where the bulk of science fiction and fantasy's genre development occurred on the graph above. For fantastic fiction and all the other fading stories created in that gap, orphan works legislation would open exciting new opportunities for rediscovery and appreciation.

My Two Cents

This paper has focused on written works, but copyright law also applies to music, dance, visual arts, architecture etc. Creators in these areas aren't necessarily going to be well-served by orphan works legislation that focuses on texts. Today's technology is completely up to the task of storing and matching text, but still very much in development for finding re-used melodies, dance steps, or even photographic remixes. It might be smart to push for text-specific orphan works legislation first, as a kind of pilot program. When the creative world doesn't come to an end and information technology has improved, other types of content could be added.

The biggest flaw in orphan works legislation hasn't been the legislation itself, but misunderstandings, misrepresentations, and outright scare mongering. What's needed are multiple promotional campaigns by libraries and artists' groups (like SFWA). Specific examples of unrepublishable works would be most effective because it would raise awareness and increase interest in what the public is missing. What if a copyright owner appears because of these campaigns? There would be an opportunity to show the benefits of reconnecting owners with interested publishers! If the owner allows it, the book could even be marketed as a "rescued orphan." Everyone wins.

It's important to keep in mind that no orphan works legislation is going to be perfect; it just needs to meet the realistic goal of being a strong improvement over the current situation. Laws can always be amended later to more perfectly reflect contemporary values and technology. It just takes that first daring step to try something new.

References

Adler, P. S. (May 1, 2008). RE: S. 2913 [letter to Senators Leahy and Hatch on behalf of the Library Copyright Alliance]. Retrieved from http://www.sla.org/pdfs/publicpolicy/LCA050108DarkArchive.pdf

Berne Convention for the Protection of Literary and Artistic Works (1979, revised from 1886). Retrieved from http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

Copyright Act of 1976, Pub. L. No. 94-553. 90 Stat. 2541 (1976). Retrieved from http://en.wikisource.org/wiki/Copyright_Act_of_1976#.C2.A7_408._Copyright_registration_in_general

Heald, P. (March 16, 2012). Do bad things happen when works fall into the public domain: The market for audiobooks. [Seminar video]. http://www.youtube.com/watch?feature=player_detailpage&v=-DpfZcftI00#t=765s

Huttler, A. (April 28, 2008). Orphan Works Act of 2008. [Web log post]. Retrieved from http://www.fracturedatlas.org/site/blog/2008/04/28/orphan-works-act-of-2008/

Loren, L. (April 12, 2012). Abandoning the orphans: An open access approach to hostage works [Audio presentation] Retrieved from http://media.law.berkeley.edu/qtmedia/BCLT/bclt_20120412-symposium/day1/Loren.m4a

Orphan Works, 70 Fed. Reg. 3739 (2005). Retrieved from http://www.copyright.gov/fedreg/2005/70fr3739.html

Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008). Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.05889:

Peters, R. (1850). The Public Statutes at Large of the United States of America, From the Organization of the Government in 1789, to March 3, 1845 (Vol. 4). Boston: Charles C. Little and James Brown.

Science Fiction and Fantasy Writers of America, Inc. (March 23, 2005). RE: Orphan Works Study (70 FR 3739). Retrieved from http://www.copyright.gov/orphan/comments/OW0607-SFFWA.pdf

Shawn Bently Orphan Works Act of 2008, S. 2913, 110th Cong. (2008). Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.02913:

Sprigman, C.J. (2004). Reform(aliz)ing copyright. Stanford Law Review, 57. p. 485-568. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=578502

Urban, J. (April 12, 2012). Orphan works and mass digitization: Obstacles and opportunities. [PDF presentation]. Retrieved from http://www.law.berkeley.edu/files/Urban.pdf

U.S. Copyright Office. (2006). Report on Orphan Works. Retrieved from http://www.copyright.gov/orphan/orphan-report.pdf