Lawrence Lessig writes an interesting article on what he thinks should happen to US copyright law to deal with Orphan Works.
The requirement it imposes after the 14/5 year delay is registration... like a DNS for copyright... Any work subject to the OWMR and failing to register within the proper period shall:
- [ALTERNATIVE 1]: lose copyright protection
- [ALTERNATIVE 2]: have its copyright remedies curtailed.
The effect of the proposal is that any copyright holder who fails to register their new work gets fourteen years copyright before their work effectively falls into the public domain. If they are still making a buck from the content or care for some other reason, registration grants them either the full copyright period or copyright protection until they fall off the registry.
I know that Lessig is something of a free culture extremest, but this proposal is interesting in how it relates to property-based views of copyright in modern culture.
I think the general feeling of people today is that if someone created a work they have the right to control that work. That control could be limited to what is required to make a dollar, but stronger control is now often accepted through use of content licensing. DRM combined with the DMCA is an extreme end of this, where a copyright owner can curtail even fair use rights just by stating in a software contract that they want the content to be used in a particular way.
Whether you take a free culture or non-free culture viewpoint I think Lessig's approach makes sense. Orphaned content reverts to the copyright periods that were envisaged when copyright law was first written. Content that still matters to the author for financial or non-financial reasons gets a copyright period consistent with the kind of investement/return ratio that Disney expect from their creations.
I'm not sure exactly how this proposal would deal with DRM per se. Orphaned DRM content that isn't registered will still not be available for use unless DRM-cracking technology is available and permitted by applicable law in this case. In the era when big content producers are increasingly tightening controls over all produced content using DRM technologies this isn't really an issue that can be ignored.
Benjamin