On Wed, Sep 10, 2008 at 9:00 PM, Jon Pratty <[log in to unmask]>wrote:
>
> I know from experience that it's no use using worthy-sounding phrases to
> protect against copyright litigants. They will find an angle to get you if
> they can...
>
Legally speaking, you're probably entirely right. I'm not even sure that
there currently is even any provision for 'orphan works' within English &
Welsh law (though I think they're working on it, see the Gowers review:
http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm
).
The law is, I imagine, about far more than just the actual written laws,
otherwise lawyers, courtroom theatrics and out-of-court settlements would
never take place. If you're going to make a risk assessment, I think you
should consider...
a) the likelihood of a copyright owner finding out about their work,
spotting that you've used it, and being then being unhappy with your
publishing it. Especially if you've already made an effort to establish the
owner.
b) the likelihood that, if all the above were true and they did contact you,
they wouldn't be satisfied with a speedy take-down, small payment or
attribution credit. I'd guess that this would satisfy most people in most
circumstances.
c) finally the likelihood that, if a) + b) were true, they would actually go
ahead and take you to court, despite all the bad publicity that would ensue
from taking a noble public institution with public education as its aim to
court. The media would surely be on your side!
All this is, of course, a RISK assessment, and some institutions might not
be comfortable with taking any risk at all, even if the risk is minuscule
and the rewards are great. Also, the risks might vary from pretty unlikely
to very very very unlikely depending on your circumstance - for instance I
imagine that selling prints of an artwork that you think it out of copyright
is probably more risky than taking an old family photo from 1962 whose
family you can't trace and publishing a copy online in an educational
microsite.
My overall point is to encourage people to be pragmatic about these issues
and to make judgements, as this is what big businesses, who are much more
likely to be sued, do. I know from friends in the radio industry, for
instance, that they break strict copyright law all the time, by playing
clips of things they haven't been able to get permission for, or making
shows available for listen again online without clearing 100% of all the
necessary rights (which is nigh on impossible).
I'm not saying you should ignore copyright law completely, but if you're
working in good faith, for a good purpose, then I don't think you need to be
too paranoid about the minutiae of what's technically allowable!
Cheers,
Frankie
P.S all the usual disclaimers about not being a lawyer, this not being legal
advise, or constituting an attorney-client relationship, blah blah blah,
apply.
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