Verily I say unto thee, that Roy Schestowitz spake thusly:
> Orphan Works Bill Deserves Support: RMS
I believe this issue may have uncovered a deeper problem that has yet to
be considered, which is that the rights to remedies against infringement
in certain jurisdictions are not granted automatically, but /require/
registration of copyrights first. This appears to be a violation of
international copyright treaties.
> ,----[ Quote ]
> | I just received an email from Richard Stallman, creator of the
> | GPL...
> |
> | [Stallman:] I discussed [the Orphan Works bill] with a lawyer (Dan
> | Ravicher of the Software Freedom Law Center)... He said that the
> | bill does not eliminate the rights of copyright owners who aren't
> | found. Rather, it merely limits what damages they are entitled to
> | recover from an infringer who, before commencing the infringement,
> | attempted a good faith search to identify the owner and seek
> | permission to do whatever is now considered infringement.
> |
> | In essence, even if the defendant can prove he tried to find the
> | author and couldn't, when the author later objects to the
> | infringement, he can still sue and get money and an injunction.
> | This bill merely places some limits on how much money can be
> | recovered in such cases. It would not mean open-season on
> | GPL-covered free software.
> `----
>
> http://blamcast.net/articles/orphan-works-bill-deserves-support-rms
However, this still does not address the issue that copyrighted works
must be registered (at cost) before infringement claims can be made,
thus precluding the vast majority of GPL and other OSS works.
[quote]
Sec. 514. Limitation on remedies in cases involving orphan works
(A) the records of the Copyright Office that are relevant to
identifying and locating copyright owners
[/quote]
http://copywrite.org/2008/05/16/hr-5889-orphan-works-act-of-2008/
It seems this Bill is in violation of various international copyright
treaties:
[quote]
Automatic protection
There is no official registration system for copyright in the United
Kingdom (UK) and most other parts of the world. There are no forms to
fill in and no fees to pay to get copyright protection.
So long as you have created a work that qualifies for copyright
protection, that is it falls into one of the categories of material
protected by copyright, you will have copyright protection without
having to do anything to establish this. It is a requirement of various
international conventions on copyright that copyright should be
automatic with no need to register.
[/quote]
http://www.ipo.gov.uk/copy/c-claim/c-auto.htm
Specifically:
[quote]
The Berne Convention was developed at the instigation of Victor Hugo as
the Association Littéraire et Artistique Internationale. Thus it was
influenced by the French "right of the author" (droit d'auteur), which
contrasts with the Anglo-Saxon concept of "copyright" which only dealt
with economic concerns. Under the Convention, copyrights for creative
works are automatically in force upon their creation without being
asserted or declared. An author need not "register" or "apply for" a
copyright in countries adhering to the Convention. As soon as a work is
"fixed", that is, written or recorded on some physical medium, its
author is automatically entitled to all copyrights in the work and to
any derivative works, unless and until the author explicitly disclaims
them or until the copyright expires. Foreign authors are given the same
rights and privileges to copyrighted material as domestic authors in any
country that signed the Convention.
...
The United States initially refused to become party to the Convention
since it would have required major changes in its copyright law,
particularly with regard to moral rights, removal of general requirement
for registration of copyright works and elimination of mandatory
copyright notice. This led to the Universal Copyright Convention in 1952
to accommodate the wishes of the United States. But on March 1, 1989,
the U.S. "Berne Convention Implementation Act of 1988" came into force
and the United States became a party to the Berne Convention, making the
Universal Copyright Convention obsolete.
[/quote]
http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works
The full list of international copyright treaties:
http://www.copyright.gov/circs/circ38a.pdf
However:
[quote]
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the
moment the work is created. You will have to register, however, if you
wish to bring a lawsuit for infringement of a U.S. work.
[/quote]
http://www.copyright.gov/help/faq/faq-general.html#register
This is an obvious contradiction. Either copyrighted works are
automatically protected or they aren't. How can it be said that they are
automatically protected, if one is not automatically entitled to
challenge infringement? This essentially means that there is no
automatic protection at all, and thus the Orphan Works Act and the US
copyright laws upon which it depends are in violation of international
copyright treaties.
Surely "protection" can only be described as such if it can be enforced,
and therefore "automatic" protection should also imply the automatic
right to enforcement?
Clearly, in the US at least, this is not the case.
--
K.
http://slated.org
.----
| "The idea that Bill Gates has appeared like a knight in shining
| armour to lead all customers out of a mire of technological chaos
| neatly ignores the fact that it was he who, by peddling second-rate
| technology, led them into it in the first place." ~ Douglas Adams
`----
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12:52:15 up 207 days, 9:27, 3 users, load average: 0.14, 0.20, 0.23
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