Excellent article by Professor Ginsburg

While I’m a bit late to the party on this one, Professor Jane Ginsburg of the Columbia Law School has posted an excellent article on orphan works which is, I think, pretty consistent on some points with my own view of the true exposure to America created by the current orphan works legislation:

“An orphan works regime must therefore aim to make works more widely available by reducing the exploiter’s risk with respect to truly “orphaned” works while avoiding the other extreme of thrusting “orphanage” upon works whose right holders can in fact be found. The solution adopted must also be consistent with international obligations under the Berne Convention and the TRIPs Accord. For the United States, this means that orphan works legislation should not occasion back door reimposition of formalities that condition the “enjoyment or exercise” of copyright….

An additional Berne/TRIPs constraint concerns unpublished works. Article 9.2 of the Berne Convention authorizes member states to provide exceptions and limitations to the reproduction right “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This provision does not explicitly exclude unpublished works from the range of permissible exceptions, but the “legitimate interests of the author” almost certainly include the interest in determining whether her work shall be publicly disclosed. Berne Conv. article 10.1 supports this interpretation, because it limits the quotation right to “a work which has already been lawfully made available to the public.” It is difficult to imagine how the nonconsensual general disclosure of a living author’s work would not “unreasonably prejudice” her legitimate interest.” (see text accompanying notes 12-14)

As a wise Member of Congress once told me in explaining why he was very careful about IP legislation, it is unwise to impose laws that have an effect on foreign copyright owners because it begins to undermine our ability to enforce our own IP laws in other countries.

See Fairness in Music Licensing Act arbitration at the WTO.