The Japanese copyright law gives a compulsory license in the case that the copyright owner can not be found because he is unknown, or for other reasons, see Article 67.
It seems that this system was used widely in World War II, when it was rather difficult to "find" western copyright owners. That difficulty was partly due to the fact that the Japanese drove the German national Dr. Plage out of Japan with some new regulations. He had represented European copyright holders in Japan in the 1930s and was feared and hated by Japanese musicians and translators as "whirlwind Plage".
All this might be one efficient way to deal with the problem of "orphaned works". Lessig wants the US to go back to a registration system for copyright to solve that problem.
The Japanese compulsory license does it the other way round. Not the authors shall be subject to formalities forbidden by Article 5 of the Berne Convention, but the person or institution interested in using the work shall need to clear their use with an institution acting as a proxy for the unknown copyright holder. In the case of the Japanese law that is the Commissioner of the Agency for Cultural Affairs.
Lessig's proposal is clearly in violation of the Berne Convention. Of course, it might be unrealistic expecting Americans to obey any kind of treaty. And authors who lose their rights guaranteed in Article 5 of the Convention to some new legislation Lessig calls for can't sue directly based on the Convention in the U.S., since the 1988 Berne Convention Implementation Act states that the Convention is not self-executing and no actions can be brought pursuant to the provisions of the Convention itself.
So violating the Berne Convention might not be a big deal, at least in the internal political discussion in America. However, other countries will take note of such violation and feel free to dump their respective obligations to the U.S. as well.
So maybe it would be a good idea after all to pay some attention to the Berne Convention.
And in that case, a system like the Japanese compulsory license might be an interesting alternative strategy to "save the orphans".Posted by Karl-Friedrich Lenz at March 25, 2004 10:48 PM | TrackBack