Court Rejects Orphan Works Appeal

A U.S. appeals court dealt another blow Monday to an effort aimed at a constitutional review of a 1992 law extending copyright protections to orphan works no longer in print.

The Ninth Circuit Court of Appeals in San Francisco rejected a challenge to the law by Brewster Kahle of the Internet Archive and film archivist Richard Prelinger. Kahle and Prelinger contend the law violates the First Amendment by preventing orphan works from entering the public domain.

The decision upheld a lower court dismissal of Kahle v. Gonzales, in which Kahle argued that the move from an opt-in to an opt-out system of copyright law requires a First Amendment review of the law.

That decision, in effect, upheld a 2003 Supreme Court decision denying a similar challenge.

The appeals court said Kahle and Prelinger made “no compelling reason” for the court to overturn the lower court decision or the 2003 Supreme Court ruling in Eldred v. Ashcroft.

Until 1976, copyright law required authors and artists to register and proactively defend their copyrights. The term of the copyright was 28 years. A series of changes in the law, however, now grants copyright protection whether or not the work is registered or renewed.

By 1992, the Sony Bono Copyright Term Extension Act retroactively extended copyright protection by another 20 years beyond the author’s life plus 50 years, again decreasing the number of works entering the public domain.

According to Christopher Sprigman of the Stanford Center for Internet and Society, who, along with Lawrence Lessig of Stanford, represented Kahle and Prelinger in the case, as much as 90 percent of published works prior to 1976 were not registered and immediately passed into the public domain.

Of the works that were registered, more than 85 per cent were not renewed and entered into the public domain.

Neither Sprigman nor Lessig were initially available for comment, but Sprigman wrote in the Public Knowledge blog, “Our tradition of opt-in copyright stands in stark to what we have today –- an ‘opt-in’ system that grants copyright protection whether or not an author desires it… Protection is indiscriminate and automatic.”

In Monday’s ruling, the court left any changing of the current copyright law to Congress, stating that lawmakers must weigh the “impetus provided to authors by longer terms against the benefits provided to the public by shorter terms.”

Art Brodsky, communications director at Public Knowledge, said in an e-mail statement to, “We were disappointed with the ruling. It shows how important it will be for Congress to address orphan works issues.”

Kahle’s Internet Archive is working on the “Million Book Project,” which hopes to offer free access to online library of digitized books. Kahle’s partners in the project include Carnegie Mellon University, the National Science Foundation and the governments of India and China.

The project heavily depends on works available in the public domain.

“These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection,” Sprigman wrote.

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