Mickey Mouse Protection
Musician Kathryn Rose speaks to Milena Popova about her music, copyright, creativity and orphan works
Image: CC-AT Flickr: hiimniko
There is a reason US copyright law is sometimes “affectionately” known as the Mickey Mouse Protection Act; there is a strange coincidence at play here – every time the copyright on Walt Disney’s early creations is about to expire, US copyright terms get magically extended by another few years. Currently, a work is under copyright both in the US and the UK for 70 years after the author’s death. This might make sense for Disney—at least someone is still making money from Walt’s creations—but for the vast majority of creative works out there, this lengthy copyright term is an issue.
Seventy years after the author’s death is a very long time to keep track of who owns the copyright on, say, a documentary photograph, a poem scribbled on the back of a receipt, a short film or a hastily composed piece of music. Often records are lost, and even living authors cannot be identified or contacted, so their works become “orphan works”. This essentially makes them off limits for subsequent creators: you cannot show, use or remix a copyrighted work without the author’s permission, and if you can’t get hold of the author, or don’t even know who they are, you have a problem.
I asked musician and composer, Kathryn Rose, what impact orphan works had on her work and creativity. Kathryn is a member of the trio Brigantia Consort, who play a range of tunes, from early music to folk and improvisation. Improvisation in particular is often inspired by other works: paintings, photographs, poems.
“We liked one poem (James Fenton's "Wind”) so much, we decided we'd like to use it in a concert we put on last summer, if we could get permission” said Kathryn. “We were thinking of printing it in the programme or maybe projecting it on a screen. The author is still alive, but when we contacted the rights company by e-mail, we didn't get any reply at all.”
In some cases there are other ways of contacting the rightsholder, but the administrative burden this puts on artists is not sustainable. When putting on a concert, the last thing you want to do is spend hours listening to the rights management company’s hold music.
“As the poem is available online,” Kathryn explained, “it's quite hard to see how much damage we would do by printing it in a concert programme. But existing copyright legislation says that if we did so, we would be breaking the law, and as a small ensemble we don't really want to take that risk, even though many others do.”
The trio were ultimately forced to find a different piece to use, which didn’t fit quite as well. Perhaps most unfortunate is the fact that it is a missed opportunity for creativity, rather than a financial loss. In effect, it becomes a case of cultural impoverishment.
Kathryn’s work as a composer is also affected by the lack of clarity around orphan works, particularly with texts she would like to set to music:
"Sometimes I'll read something and immediately start to imagine how it would sound sung, what harmonies I might use or what the melody is up to – but I'm not going to follow that up and actually do the work of composing something if I don't have permission.
"My experiences with trying to get permission have not exactly been encouraging, so I try not to look too hard at anything recent, and I'm essentially working with a time-lag of a century or more, as I wait for authors and artists to have died long enough ago that I can use their work."
It is that last comment—about working with a time lag—that should give you pause. As Professor James Boyle (@thepublicdomain), pointed out at last year’s ORGCon, we are the first generation in history who are cut off from their own culture. The extension of copyright terms that we've seen in the past few decades—from as little as 14 years to a retrospective extension to 70 years after the creator's death—has the effect that, barring a deliberate choice from the creator, our culture is not accessible to be built on by others within the same generation, or even several generations on. Yet, it is widely held that the majority of works exhaust their commercial viability after only five years, and most works which copyright term extensions have put beyond our reach, are actually orphan works.
Photographs and films degrading in archives, and cases of teachers not being able to use pictures in their class, are some other examples of where these flawed laws inhibit education and creativity.
There are, however, some great initiatives to make progress in the area of orphan works, championed for instance by the Electronic Frontier Foundation in the US, where the last attempt to legislate on the matter failed miserably in 2008. Let's hope ORG along with other organisations, artists, musicians and other rightsholders continue to promote and fight for the cause in both this country and Europe as a whole.
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