Imagine you’re driving on a toll road. Approaching a tollbooth, you stop — but there’s no one inside.

Who do you pay?

Toll roads make a bargain between the public and the people who built the road: “In order to build a new road,” the public says, “We agree to pay tolls on it, for a limited time, until the road is paid for.” The efficacy of the model relies on people paying the tolls. Now, you try to do the right thing. Besides, you could get in trouble if you go ahead without paying the toll. But what do you do when you can’t find the toll collector?

This situation happens every day in the world of copyright. Without getting too thick into the boring stuff, U.S. copyright law is constructed in a way that sometimes make it difficult or impossible to find the copyright holder for a given work. Often, the copyright holder may be out of business or dead. Even if you know who holds the copyright, it may be very hard to find out how to contact them. In most cases, the law says you can’t use these works without permission from the rightsholder, but how do you get permission if you don’t know who to ask?

These are “orphan works.” They may be music, literature, film, photography, software — anything governed by copyright. Whether you want to re-print a book, use archival film footage in a documentary, or upload a video game to your Web site, they have no one standing at the check-out counter. New creations can’t go forward and copyright holders can’t get paid — everybody loses.

Copyright law is supposed to promote progress, but this legal roadblock creates a drag on new innovation and business, grinding progress to a halt. The tollbooth was an inconvenience, but orphan works are a nightmare for free speech and economic growth.

But today, you have an excellent opportunity to help solve it. FreeCulture.org is proud to announce — if a little behind schedule — OrphanWorks.org.

On January 26, the U.S. Copyright Office issued a notice of inquiry into the orphan works dilemma. In other words: the government has explicitly asked for our help. They want to hear from legal scholars as well as regular folks.

Ordinary people can and have used this process to affect government policies. Two recent examples include a 1998 comment period by the Department of Agriculture on its definition of “organic” foods and 2004 comment period by the National Weather Service on the use of an XML format for publishing weather data. The government is listening.

OrphanWorks.org — a joint project of the EFF, Public Knowledge, and FreeCulture.org — is a submission form so anyone can easily submit their comment online. Use the form on OrphanWorks.org to submit comments directly to the Copyright Office — just type, and we’ll take care of the formatting and submission.

The Copyright Office specifically asked for comments from people who have run into the orphan works problem — either in a new creative effort or in making the work available to the public once again — so if you’ve been there, we especially need to hear from you. If you’ve never been in that situation, but simply think it’s a problem, please submit and tell the Copyright Office so. You may have never seen it, but the orphan works loophole means consumers have fewer choices: you lose out on new creativity or scholarship that you never even knew existed.

The comment period is open until March 25, 2005. Please stop by OrphanWorks.org and submit a comment with your experience, with your support, or with a solution.

Before OrphanWorks.org, FreeCulture.org had our own submission form which was never quite done, but which people used anyway. J.C. Jones, its programmer, reports that forty-some people submitted using our form. Of those, 20 permitted us to make their comment public before the end of the comment period — you can read them here. The topics range from Depression-era radio shows to abandonware video games to family wedding photos.

I’m proud to be able to play a role in giving people an opportunity to improve their world. I hope you’ll join us. Please submit.

Update: The comments submitted via our form have been mentioned on Boing Boing and Copyfight. Pass it around: the folks who wrote these comments aren’t lawyers or professors, just people who’ve been harmed by their own laws — and they’re speaking up to try to improve things. Isn’t that what democracy’s about?

This entry was posted on Tuesday, March 8th, 2005 at 2:19 am and is filed under Blog, FC.o News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.