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ARSCLIST  November 2014

ARSCLIST November 2014

Subject:

Re: "UK opens access to 91 million Orphan Works"

From:

John Haley <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Mon, 3 Nov 2014 16:12:07 -0500

Content-Type:

text/plain

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text/plain (176 lines)

Hi, James.  I understand where you are coming from.  If Shakespeare said
"the law is an ass" (at least putatively), that may be so, but it is still
the law.  Courts do what they do and everybody else just has to deal with
it.  LOC is an arm of government and cannot pick and chose what law it
likes and wants to follow, although technically speaking, it should
probably not be bound by state law.  But that leads directly into another
legal swamp, the law of federal preemption of state law, when that doctrine
applies and when it doesn't.

Best,
John Haley






On Mon, Nov 3, 2014 at 3:45 PM, Wolf, James L <[log in to unmask]> wrote:

> Thank you for your response, John. My view of this issue has definitely
> been shaped by the position of the General Counsel here at the Library.
> Since before I arrived in 1992, it has been the Library's position that
> that the most restrictive of the state copyright laws has applied to our
> activities. I can understand that this is the safest and simplest position
> for the institution, but may not necessarily be accurate from a more
> experienced legal point of view. I take it as at least a little bit of good
> news that the scope of the state laws is not as simple as I thought it was.
> But I can also see that this subtlety may have been lost in the Naxos
> decision.
>
> James
>
> All opinions personal and do not reflect Library policy or positions, etc.
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of John Haley
> Sent: Monday, November 03, 2014 1:29 PM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] "UK opens access to 91 million Orphan Works"
>
> Thanks, James.  As a NY lawyer myself, I of course read the Naxos decision
> with great interest when it first came out.  It is neither fair nor
> accurate.  The NY Court of Appeals (where I myself have argued and won an
> important case) went to great lengths to justify its nutty decision (it
> finds NY state law copyright protection applicable to Casals recordings
> made in the 1930's in London, which had long been in public domain in the
> UK--the recordings themselves had nothing to do with NY) by citing a lot of
> precedent, but when you examine that precedent, you see that it has not
> been accurately cited or characterized, having been substantially
> "reinterpreted" to justify the desired result.  Frankly, what happened here
> was that Naxos seems to have got way "out-lawyered."  I don't know any of
> the lawyers involved in that case.
>
> State law has existed since the states have existed, and the body of
> mostly property law, but also tort law, that has been applied to state law
> copyright issues is anything but consistent from state to state.  There is
> no uniform body of pre-existing state law copyright law as applied to
> recordings.  In fact, existing decisions are fairly few, and the existing
> precedents applied in contexts that have little relation to today's
> technology.  What is happening today, with state courts rendering decisions
> regarding rights involved in pre-1972 recordings, does not fall back on any
> kind of existing, well understood legal concepts relating to recordings,
> and thus mostly represents new application of old concepts in a new
> setting, although, as with the NY Court of Appeals, courts will go to great
> lengths in their decisions to make it appear otherwise.  What is happening
> is in fact creating worse chaos from what is already chaos.  Patents and
> copyrights are properly subject matter for the federal government, not
> state courts getting all creative.  My pessimism is fully justified, I am
> afraid.
>
> Best,
> John Haley
>
> On Mon, Nov 3, 2014 at 12:57 PM, Wolf, James L <[log in to unmask]> wrote:
>
> > While I agree with the overall pessimism expressed here, I don't think
> > the characterization of state copyright laws is accurate. These have
> > existed for a very long time and have explicitly applied to pre-1972
> > recordings since the dawn of federal sound recording copyright in 1972
> > . The ruling in the EMI v. Naxos case was, IMO, a fair reading of the
> > law as it stands. The problem is that the current state of the law is
> > actually that bad, and incentives for legislators to change it hardly
> > exist, especially in these post-Citizens United days.
> >
> > James
> >
> >
> > All opinions personal, no reflection of Library policy or position, etc.
> >
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of John Haley
> > Sent: Monday, November 03, 2014 12:32 PM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] "UK opens access to 91 million Orphan Works"
> >
> > Thanks very much for posting that, Stephen.  What a totally
> > enlightened, simple good idea that is.  Orphaned works still under
> > copyright can be licensed for a fee (hopefully a small one) by the
> > government, and then if someone comes forward claiming ownership
> > (which as we know from ARSC research, is never going to happen 99.99%
> > of the time), that person's rights can be established and
> > acknowledged, and payment duly made.  I presume that this person
> claiming ownership must provide adequate proof.
> > Simple, fair and elegant.  A "win" for everyone, including most of all
> > the public.
> >
> > This system shows such decency and good sense that it probably has no
> > chance of being considered in a country such as ours (US), where
> > obfuscation and deliberate confusion of all copyright law seems to be
> > our national goals.  What is currently going on in US state courts
> > with the active creation of new state copyright law for pre-1972
> > recordings that are not covered by federal copyright law, spurred on
> > by New York's making up new state law some years back in the EMI v.
> Naxos case (in which "new"
> > precedents are cut from whole cloth), is truly insane, exacerbating an
> > already hopeless crazy quilt of wildly various state law.  ARSC has
> > been the only bright light on the horizon in offering real solutions.
> > It becomes obvious that there are heavily vested businesses and
> > institutions that prefer things the way they are.
> >
> > Regards,
> > John Haley
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > On Wed, Oct 29, 2014 at 11:47 AM, Leggett, Stephen C <[log in to unmask]>
> wrote:
> >
> > >
> > > https://www.gov.uk/government/news/uk-opens-access-to-91-million-orp
> > > ha
> > > n-works
> > >
> > >
> > > "A new licensing scheme launched today (29 October 2014) could give
> > > wider access to at least 91 million culturally valuable creative
> > > works
> > > - including diaries, photographs, oral history recordings and
> > > documentary films.
> > >
> > > These works are covered by copyright, but rights holders cannot be
> > > found by those who need to seek permission to reproduce them. Under
> > > the new scheme, a licence can be granted by the Intellectual
> > > Property Office so that these works can be reproduced on websites,
> > > in books and on TV without breaking the law, while protecting the
> > > rights of owners so they can be remunerated if they come forward.
> > >
> > > Baroness Neville-Rolfe, Minister for Intellectual Property said:
> > >
> > > The UK's trailblazing orphan works licensing scheme enables access
> > > to a wider range of our culturally important works.
> > >
> > > The scheme has been designed to protect right holders and give them
> > > a proper return if they reappear, while ensuring that citizens and
> > > consumers will be able to access more of our country's great
> > > creations,
> > more easily.
> > >
> > > The scheme also aims to reunite copyright holders with their works
> > > and ensure they are paid for their creations, by requiring the
> > > applicant to conduct a diligent search and allowing the right holder
> > > to search the register of granted licences. "
> > >
> >
>

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