The United States' excessive copyright terms have led to an orphan works crisis in this country. Tens of thousands of books, films, music recordings, and other cultural works across decades have been made completely inaccessible by copyright's strict monopoly, which can last more than 140 years. That casts a shroud of legal uncertainty over orphan works—works where the author or rightsholder cannot be identified or located—which makes using, preserving, or sharing them risky and essentially renders them culturally invisible and forbidden.

Earlier this year, the Register of Copyrights issued a report about this very problem called Orphan Works and Mass Digitization. In it, the Register of Copyrights acknowledges a need to do something about the fact that "orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace." The report includes a discussion of several proposals that could expand access to orphan works. One proposal is to put limits on the legal consequences for those who do anything technically infringing, in order to make it less daunting to take a chance and use them.

In the midst of this overdue discussion about how to address this issue the Trans-Pacific Partnership (TPP) threatens to undermine Congress' own ability to create practical solutions to fix it. The leaked TPP's Intellectual Property chapter has revealed heavy-handed civil and criminal penalties that could go beyond existing U.S. law to treat even noncommercial uses of copyrighted content, including of orphan works, as illegal and criminal.

In light of this, EFF has joined as signatory to a letter that calls on the U.S. Trade Representative not to agree to any provisions in the TPP that could prevent Congress from enacting fixes to address the orphan works problem. Other signatories to the letter are Authors Alliance, Creative Commons, Knowledge Ecology International, and New Media Rights.

EFF stands for more comprehensive reforms to our copyright laws that would also help with the orphan works problem—such as shortening the term to, at most, the international standard length of Life+50 years, and a requirement that copyright holders proactively register (and renew registration on) their works so that they don't merely fall into a cultural black hole. But in the absence of those, we can't let the White House pass more rules that would keep so many creative works lost and invisible for years. That's why we urge the USTR to ensure that the TPP does not bind us to inflexible, restrictive rules that would undermine congressional efforts towards enacting incremental fixes to this copyright crisis.

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Civil Society Letter on TPP Remedies Over Orphan Works [PDF] - August 31, 2015