Hal Varian: Copyrights That No One Knows About Don’t Help Anyone

Hal Varian has a proposal to improve copyright law:

Copyrights That No One Knows About Don’t Help Anyone, by Hal R. Varian, Economic Scene, NY Times: ...Under current law, a work is automatically copyrighted the moment it is “fixed in tangible form.” And these days, that copyright lasts virtually forever: 70 years after the death of the author, in most cases.

Since there is no requirement to register a work and a copyright lasts so long, the legal owner ... can be difficult to find, particularly when the work is more than a few decades old. ... The costs of locating rights holders are an example of what economists call transactions costs. Not surprisingly, high transactions costs tend to discourage transactions from occurring.

The so-called orphan works problem was examined by the Copyright Office in a 2006 report in which it proposed legislation to address the transactions costs issues. Under its proposal, if you conducted a “diligent search” to locate a rights holder .., you would be off the hook. ...

Clarifying the rights and obligations ... would reduce transactions costs, and that should lead to a more efficient market... But does the proposed legislation go far enough? According to Lawrence Lessig, a Stanford University Law professor who is an expert in copyright law, it does not. He favors a system where authors receive an automatic copyright when they create new works, but they must register their copyright within 14 years to retain it past the initial period. ...

Mr. Lessig envisions the Copyright Office as specifying the standards for registries but not necessarily operating them, since the private sector may be better positioned to build and maintain such systems. His inspiration is the domain name system used to register Internet sites. In that system, a standards body specifies the design, but ... individual organizations to carry out the necessary registries.

The proposals by the Copyright Office and Mr. Lessig are not necessarily exclusive. If easily accessible copyright registries existed, the courts would probably find that simply searching the registries would satisfy the diligent search requirement. Creators of works with commercial potential would then have strong incentives to register their works. ...

The orphan works legislation from the Copyright Office is still on the back burner in Congress. Let us hope that it soon gets the attention it deserves. Information plays a crucial role in today’s economy. Making it easy for creators and users of information to find each other should be a high priority for policy makers.