Ninth circuit rejects efforts to liberate “orphan works”

“Orphan works” are works that are protected by copyright, but for which it is difficult, if not impossible, to locate the copyright owner. These works usually have little or no commercial value, but some argue that the uncertainty surrounding their ownership needlessly discourages subsequent creators and users from incorporating them into new creative efforts.

Works created before the effective date of the Copyright Act of 1976 (i.e., under the 1909 Act) were subject to copyright protection for 28 years. That duration could be extended if the copyright owner renewed the copyright for another 28 years. Accordingly, the old system has been characterized as an “opt-in” system, in that to extend the duration of copyright ownership, the owner had to take certain affirmative steps.

The Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, eliminated the renewal requirements for works created between 1964 and 1977. The Sunny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998), extended the term of copyright ownership to the life of the author plus 70 years (in the case of works authored by individuals). The present framework has been described as an “opt-out” system, in that copyright protection attaches automatically, unless a person takes some affirmative act to convey the work to the public domain.

The opt-out system and longer terms of copyright mean a larger number of orphan works. Some say that orphan works “probably comprise the majority of the record of 20th century culture.”

Brewster Kahle, founder of the Internet Archive, along with a number of other plaintiffs, sought to fix the present situation of orphan works by challenging the constitutionality of the Copyright Renewal Act of 1992 and the Sunny Bono Copyright Term Extension Act. They filed a declaratory judgment action in federal court in California, emphasizing the increased possibilities for archiving and disseminating content over the Internet. When the court granted the government’s motion to dismiss, the plaintiffs sought review. On appeal, the Ninth Circuit affirmed the dismissal of the action.

[Aside: Check out this interesting interview that Dr. Moira Gunn did with Brewster Kahle last year.]

The plaintiffs raised two arguments. First, they argued that the change from an “opt-out” system to an “opt-in” system “altered the traditional contour of copyright” and therefore, under the holding of Eldred v. Ashcroft, 537 U.S. 186 (2003), should be subject to First Amendment review. The second argument was that the current copyright term — providing what the plaintiffs characterized as a term that is “effectively perpetual” — violated the Constitution’s “limited Times” prescription, found at Article I, Sec. 8, Clause 8.

The court rejected each of these arguments. Relying on the Eldred case, the court held that the Copyright Renewal Act of 1992 and the Sunny Bono Copyright Term Extension Act both served to “lengthen the term for [certain works], but in doing so they simply placed existing copyrights in parity with those of future works.” In Eldred, the act of creating “parity” survived constitutional scrutiny. And so it did in this case too.

As for the second argument, namely, that the current term of copyright — in many instances well over a century — was too long, the court relied again on Eldred. Noting that the decision of Congress to extend the term of copyright was subject to rationality review, the court looked to the “rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works.” In other words, Congress had undertaken an appropriate balancing test between encouraging creativity and bringing works into the public domain.

Kahle v. Gonzalez, (Slip Op.), —F.3d—-, No. 04-17434 (9th Cir., Jan. 22, 2007).