Kevin Smith discusses the orphan works problem

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Farm fields near Godshill, Isle of Wight, U.K. (Courtesy of Wikimedia, 2011)

Another excellent post from Kevin Smith at Duke on some potential solutions to the orphan works problem including going back to the use of a renewal requirement. He also points out that copyright is really the only type of property not subject to what I will call “efficiency” rules – e.g. if one does not make any use of real property it can be taken through a process call adverse possession ( it probably isn’t very efficient but serves the purpose of getting real property back into production or in the market) – similarly with personal property, as Smith points out, can be abandoned and used by another – thereby increasing efficiency and productivity – resources are not being allowed to go fallow as it were. The use of these concepts in copyright make more sense than they do in more tangible property. With history as a guide we know that up to 80% of copyrights were not renewed in the past and that these rights were essentially “abandoned” when a renewal period was in place – allowing the public domain to be well fertilized with new material. Now, however, with renewal requirements gone and protection increasing ad infinitum we have allowed our public domain fields to go dormant to the detriment of us all and with little to no benefit.  (No, I did not spend a weekend on the farm). Read more on the orphan work issue from Kevin Smith’s blog.

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