[Leica] Orphan Works and Fiar Use

[marcsmall at comcast.net (Marc James Small)]

At 01:49 PM 5/13/2008, Steve Unsworth wrote:
 >Marc, of course it unacceptable that Hove have cheated some authors out of
 >their  royalties. However Hove were/are publishers of fairly esoteric books
 >that don't sell in very large numbers. So if someone like Hove stiffs the
 >authors not many people get hurt and not for much money - yes each loss is 
 >a
 >tragedy for the author, but Dan Brown you're not. However it appears that
 >this bill could potentially affect vast numbers of photographers at an
 >enormous cost to them.
 >
 >You need a sense of perspective and not think the world revolves around 
 >your
 >problem. There are bigger issues at stake.


Whoa, there, big guy:  my concern was that the 
photographers were insisting that the world 
revolved around THEIR concerns and screw those of 
us who write books.  I would suggest a bit of 
balance in our discusions -- I was over board in 
my initial posting and have since acknowledged this.

Tina raised legitimate concerns over exclusions 
from copyright protection for works used for 
educational and charitable and religious works 
and the like.  I suspect that what we are seeing 
there is a carryover of the current "fair use" 
doctrine, an absolute bulwark of academic 
publishing.  It is necessary to bear in mind that 
intellectual property rights laws are pretty severely capslized.

For instance, patents are treated one way and 
this area of law has been tossed up into great 
confusion by the uneven protections afforded drug 
patents by various nations.  Trademarks are also 
treated in a unique matter and, again, there has 
been some uncertainty in this by several 
unfortunate bits of legislation adopted by 
Congress in the 1970's and by the EU shortly thereafter.

Now copyrights treat the remaining areas of 
intellectual properties in three distinct 
manners:  music is given mainstream protection 
and this system seems to be working adequately as 
witness the Napster litigation of a decade 
ago.  But now we go into free-fall when we come 
to visual works -- photographs, paintings, and 
sculpture and the like -- and written works such 
as articles, stories, and books.  Here, there is 
a great disparity.in how and what can be copied without payment of royalties.

For photographs, you have to obtain permission 
and pay such royalties as are required and 
provide appropriate attribution.  This is an 
absolute so long as the photograph is still under 
copyright.  If you want to reproduce say, the 
picture of Tenzing Norgay at the summit of Mount 
Everest in 1953, then you either need the 
permission of the organizational holders -- the 
Royal Geographic Society, the National Geographic 
Society, or the Alpine Club -- or of Sir Edmund 
HIllary's Estate.  There are no exceptions during 
the life of the copyright.  (Yes, I once had to 
get permission to reproduce this picture:  the 
National Geographic Society charged us around 
$200 or so;  about a year later, I mentioned this 
to Sir Edmund and he wrote me back that I should 
have asked HIM as he would have given permission 
at no charge.  We all live and learn.)

Written works are of an entirely different 
nature.  Scholars and reviewers are allowed to 
quote from such works to provide proof of a point 
or to display the original author's 
attitudes.  When I wrote my book on non-Leitz LTM 
lenses, I cited extensively from the works of 
others and could do so without worrying about 
permission or royalties as that is "fair 
use".  And those who reviewed my book quoted me, 
again in extenso, and could do so without permission or royalties.

So, if I want to critique one of Tina pictures, I 
may do so without worrying about royalties or 
permission as that is clearly covered by fair 
use.  But to reproduce the picture, I have to 
respect such matters with extreme dedication to precision.

I suspect the provision in this "Orphan Works" 
bill to which Tina objected is intended to 
preserve the long custom -- gong back to 
pre-Christian days in Greece and Rome -- of 
academic commentators to be permitted a fair use of each others ' works.

And, frankly, I have had problems on many 
occasions trying to run down the holders of 
copyrights.  Try to discover who holds the rights 
to, say, Kilfitt ads from the 1950's, especially 
when Zoomar just acknowledges a request and never otherwise responds.

Marc






msmall@aya.yale.edu
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