[Foundation-l] Stroop report

Tue Mar 25 12:54:45 UTC 2008

Hello,

I am talking about cases where no actual copyright holder can claim 
anything, not about other cases.

I see at least two cases where this occurs:

1. As Ray mentioned, the copyright holder was a corporation which is 
bankrupt, and no entity has acquired the rights. This can be determined 
fairly accurately.

2. If the death date of the author is not recorded anywhere, especially 
not in any national databases, such as the Library of Congress, how 
could you claim any copyright? This is fairly common for translators of 
minor works before WW2. If this date is not known, no copyright holder 
can claims anything, as the burden of the proof is on the accusation. 
Again I don't talk about the fact that the heirs are certainly not aware 
of their rights if the date of author's death is not known.

So there exists some cases when nobody can claim any copyright, although 
the work is not legally in the public domain. Most of your arguments 
below do not apply in that situation. Alberto Korda does not belong to 
this case. It is still different that the case where "the copyright 
holder could claim something, but he is not known and/or he is not aware 
of his rights". Please do not mix cases in a grand argument against 
"orphan works".

Regards,

Yann

geni wrote:
> On 24/03/2008, Yann Forget <yann at forget-me.net> wrote:
>> I think that this argument can be easily reversed.
>>  Copyright without a copyright holder is just nonsense, because only the
>>  copyright holder can claim it. Nobody, not even the "State" or any
>>  public body, can do it on the holder's behalf. So I think that we should
>>  apply common sense, and allow images of which the copyright holder has
>>  disappeared in the mists of time.
 >
> Are you prepared to agree to cover any costs that result from such a policy?
> 
> While you and I might be unable to trace a given copyright holder that
> does not mean that such a person does not exist and decide to start
> exercising their rights.
> 
> A few years back you might have thought it fairly safe to conclude
> that Alberto Korda wasn't going to enforce his copyrights. As Smirnoff
> discovered you would have been wrong.
> 
> Worse still IP can be inherited. The nice old Mrs Smith may not chose
> to enforce their copyrights be the son who works in the city and sees
> another opportunity for profit? Or Getty buy up yet another defunct
> photo agency and guess what they find in the collection that you
> thought no one would ever enforce copyright on?
> 
> After decades of mergers sales and bankruptcies you might think that
> certain copyright have become orphaned. United Amalgamated
> Consolidated Holdings are likely to think otherwise.
> 
> Gets better than that. You claim the state can't get involved? Well
> firstly that isn't universally true and even where it is what of the
> case where a person dies without a will or any heirs at all?
> 
> 
> Then there is the problem of defining orphaned works. Fact is legally
> it is extremely hard for a work to become orphaned. How exhaustive
> does the search have to be before you consider a work to be orphaned?
> 
> Oh and if you think you can answer the above questions remember since
> we are talking foundation policy you realistically need to be able to
> answer them under US law, non US English common law based systems and
> Napoleonic code based systems.
> 
> Wikipedia copyright policy is generally crafted to keep grey areas to
> an absolute minimum. Advocating a course of action that would increase
> the number of grey areas is not a good idea.

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