Copyright law makes for strange circumstances. This is because it’s a monopoly designed to let creators make money, but the vast majority of everything that’s copyrighted isn’t for sale anymore, if it ever was. Everything is fully protected from the moment it’s created, regardless of its creator’s intent. But most of what copyright law touches is never commercial, and even the exceptions are rarely commercially viable for long.
Are our copyright laws in a state of dissaray?
That leaves most human creations in a legally untouchable gray zone. We want to preserve them, or even sometimes use them, but we can’t touch them until they fall into the public domain. These lost 20th-century works are called orphans, and this quirk of copyright law is why more books are in print from 1850 than 1950. Often, there is nothing to do but wait. In the meantime, innumerable artifacts of human expression fade away, sometimes literally, as the physical media that holds them decays over time.
No one likes this problem, and legislators have been trying to fix it for a while. But no one likes the fixes, either. The UK is taking a stab at it with the Enterprise and Regulatory Reform (ERR) Act. This allows the use of orphan works, if their creators cannot be found and if a market-rate fee has been paid to a holding organization in case the creators appear. The idea of a diligent search is still undefined (as is what happens to unclaimed money), and it still doesn’t solve the problems of archiving mass content for future generations, but this is a step in the right direction. Copyright is complex, and it’s genuinely hard to make it work in the digital age. But there’s so little effort to even try that this is fantastic news, and something we’d do well to keep an eye on.