Fred Smith comments on Hillel’s piece

Below see CEI President Fred Smith’s comments on Jonathan Hillel’s piece in the San Jose Mercury News:

Hillel’s piece raises the very interesting question of whether the use of copyrighted materials must forever remain out of reach of most people.  The vast majority of creative works disappear from public view within a very short time of their release.   Few books or records are best sellers, many magazines (especially specialized magazines and journals) go out of existence in a decade or so.  Yet, the information and enjoyment value of these works might enrich millions of people in our new e-world.  Currently, the length of copyright and the reluctance of any one to devote the resources to bring them back into view mean they’ve been taken from the world’s “library” and “record/CD/DVD” shelves.

One way to think through this topic is to consider how real (as opposed to intellectual) property that has been “abandoned” is treated.  Land, for example, remains in the hands of the original owners unless (as is very often the case) no one has paid the property taxes for a number of years (in political jurisdictions without property taxes – there must be some – I have no idea what is done) and then these lands are sold to compensate the jurisdictions for the unpaid taxes.   In another case, individuals may open a financial account in some institutions and then for some reason (death, forgetfulness, small balance) simply abandon it.  Since some costs are incurred in maintaining such accounts, some private institutions will simply close the account and absorb whatever assets are in that account (airline loyalty programs, for example) although generally an effort is made to warn the user that such action is imminent.  Banks, being regulated and subsidized, take various approaches to what, in that context, are called “dormant accounts.”  After a period of inactivity, the banks post notices and, if no response is received, any funds (less management fees) are generally transferred to the state in which that account exists.  (Depending on state law, one may be able to recover the funds even after this transfer if adequate documentation can be provided.)  In some jurisdictions, however, the financial institution simply retains the funds and uses them as part of their reserves, while still honoring the obligation to repatriate the funds (perhaps with interest) if a qualified owner eventually turns up.

Whether the shift of “orphan” copyrights to the state or a creative party and, in either case, what obligations should exist if the owner does appear after some period of time, is an interesting question.  The Google “answer” seems both equitable and fair.