Happy Birthday and the best interests of orphan (works)

I have been traveling a lot recently, and I use time on airplanes to catch up on articles I want to read. As always, Bill Patry’s blog is a great source for citations to interesting topics, and I was particularly taken by an article he recommended recently – “Copyright and the World’s Most Popular Song” by Robert Brauneis of the George Washington University Law School. Brauneis’ article is a great airplane read; a tour de force of historical research and reasoning that dissects both the history of the song “Happy Birthday to You” and the persistent claim that the work is still protected by copyright. His detailed discussion of the tangled history of authorship and its relation to the various copyright acts and ad hoc term extensions that occurred since the original composition of the tune (at least) in the 1890s beautifully illustrates how difficult establishing the status of older works is now that copyright term has grown so long, well past the memory of any person alive at the work’s creation.

This problem of establishing the rights in a very old work makes Brauneis’ article especially interesting at a time when Congress is considering ways to address the issue of orphan works – older works that are still protected for which no rights holder can be found. Brauneis mentions the orphan works proposals only in passing, but his investigations, and the lessons he learns from those inquiries, help clarify why orphan works are so problematic and suggest new directions for consideration of those problems.

First, as should already be clear, there is the problem that, as copyright term gets ever longer, it becomes harder and harder to identify authorship, trace rights, and even verify if the correct rights holder registered the work (this is very significant for works protected under the 1909 copyright act, but it could also be important if an infringement action were brought regarding a more modern orphan). For the song “Happy Birthday to You,” Brauneis is dealing with a relatively small and identifiable group of authors, yet the problems of identifying who wrote what and who should have registered which works are very knotty indeed. For genuinely orphaned works, these problems only multiply. As Brauneis points out, the rather scanty record-keeping efforts of the Copyright Office contribute to the difficulties in this area. He holds out hope for more comprehensive record retention in the digital age, although that is happening very slowly, and it is worth noting that the orphan works proposals also contain some requirements of additional recordkeeping to make diligent searching for rights holders a little bit easier.

Brauneis also notes the disincentives that are present to discourage potential users from challenging a dubious claim to copyright. In the case of “Happy Birthday to You,” there is substantial evidence that the song is not protected by copyright any longer, in spite of the myth, ubiquitous in copyright discussions, that it is. Nevertheless, the song generates $2 million in royalties for the company that claims to hold the rights. Since no single user pays a great deal for the rights, the users have little way to identify each other or act in concert, and blanket licenses make it difficult to distinguish exactly what one is paying for in any case, the song continues to generate a great deal of income and the public is denied a small but popular piece of its cultural heritage. This is not quite the same problem, of course, as that which prevents use of orphan works, but it is another example of structural difficulties in copyright that stifle creativity and learning.

Finally, Brauneis makes a fascinating point about the lack of any mechanism in copyright for obtaining the kind of prescriptive rights that are available for persistent (mis-)users of real property. When a trespasser uses land in a way that is continuous, open and “notorious” for a number of years, they may gain a prescriptive easement to use the land or even take title through adverse possession. When a copyright owner fails to enforce his or her rights, however, even if it fears that those rights would not stand up in court, no such legally cognizable rights are gained by the user. While one user may “infringe” without consequence (as many appear to do with “Happy Birthday to You”), the putative rights holder may continue to collect royalties from all those others who do not know about the dubious claim. All of the solutions proposed for the orphan works problems are merely attempts to mitigate the consequences for a potentially infringing use by reducing the available damages; Brauneis’ article raises the fascinating suggestion that that problem and others might be better addressed by allowing users to gain a legally recognized right in a work when and if they use that work in an obvious and long-term way and the copyright owner elects, for whatever reason, to “sit on her rights.” Such a solution would certainly expanded the cultural commons, although it might be useful in only a relatively few situations where the risk of litigation from a rights holder was very slim ( thus a “reasonably diligent search” would still be necessary). Most promising, however, is Brauneis’ comment that this kind of prescriptive rights approach to the problem of missing or inactive rights holders could be imposed judicially, rather than having to depend for a solution on a distracted and easily influenced Congress.