The SFWA actually can do some useful things when it’s not getting embroiled in scandals. A press release on its web site notes that former SFWA President Michael Capobianco will be attending some US Copyright Office roundtables on the problem of orphan works on March 10th and 11th. The problem posed by orphan works is becoming more obvious the longer copyright lasts. However, the SFWA suggests that the problems may not be as severe as some copyright reform advocates claim.
The SFWA’s full position on the orphan works matter is laid out in a white paper (PDF) that it submitted to the Copyright Office on Febuary 4, 2013. The SFWA feels that the copyright office calling for a “good faith” search sets too low a standard, and wants the office to set specific standards for diligent searches that must be conducted before such a use can be made. It also wants the Copyright Office to establish an Author Information Directory where authors can register their contact information to make themselves and their heirs easier to trace. An escrow fund should be established into which payments for use of orphan works can be made. The Copyright Office should make it easier to track freelance contributions to collective works. And the Copyright Office should declare that the diligence of the rightsholder search should be the most important factor when a court decides whether to award enhanced damages for infringement.
The one thing that puzzles me is the SFWA’s contention that
If no claim is made within ten years, the funds in escrow would be sent to an organization able to distribute the funds to rightsholders. For written works, we strongly suggest using the Author’s Coalition, which processes foreign reproductive rights payments, or a similar organization designated by the Copyright Office. Works republished via this avenue should be republished unedited for style or content.
But if nobody stepped forward to claim the money in ten years, what rightsholders would the money be distributed to? If there were rightsholders, they’d surely turned up in the diligent search, or else have found out and claimed it by then.
That puzzler about where the escrow funds go aside, I can’t really fault any of the SFWA’s recommendations. As the SFWA notes later in the paper, it has run across situations where its own authorial estate database would have located the rightsholders to a work someone else presumed to be orphan. As nice as it would be to see these works of dubious copyright get back into circulation, it does seem like it would be a good idea to make sure beyond a reasonable doubt that their owners can be found, and that they can be compensated if they should come forward later on.
(At least insofar as they’re not being used for a purpose that would be considered fair use, and hence no compensation required. Elsewhere in the PDF, the SFWA makes no bones about not considering Google Books to be fair use, but noting that if it should turn out to be found so, it’s even more urgent that an accurate directory of author contact information should be created.)
The copyright office will be transcribing the events and posting them to its web site. For members of the public who also wish to be heard on the matter, the Copyright Office should have a public feedback form on its site no later than March 12th.