In a dark corner of the Trans-Pacific Partnership lurks some pretty nasty copyright law
The extent to which our international obligations interact with — and
may sometimes override — domestic law is a pretty fascinating one, and
is, for any number of pretty obvious reasons, increasingly in the news.
Here’s a rather small footnote to the very large controversy over the
Trans-Pacific Partnership treaty, involving a narrow (but actually quite
important) bit of U.S. copyright law, that nicely illustrates how
complicated these questions can be — a synecdoche, as it were.
The
copyright issue relates to so-called “orphan works.” As a consequence
of many factors — the absurdly long term of copyright protection [life
of the author plus 70 years — see my comments here
on the liberation of Sherlock Holmes, after a lo-o-ong time, from his
copyright shackles], along with the elimination of copyright notice, or
copyright registration, requirements as preconditions for copyright
protection — there are literally millions upon millions of works —
books, letters, songs, articles, poems . . . — created in the ’30s,
’40s, or ’50s that are (a) still protected by copyright, and for
which (b) it is virtually impossible to ascertain who owns the
copyright, or even whether the copyright is still in force. Consider
this scenario:
