Today's New York Times editorial page takes up orphaned works covered by copyright, keying off on the bequest of recordings by jazz masters to the National Jazz Museum in Harlem link here
. The problem is identifying the performers and finding them to offer them compensation under the current version of the copyright law. Without that, they won't be reproduced and the works widely distributed. The Times solution is an amendment to the law which would make it possible after a good faith search and undertaking to pay should the performer surface.
The Times notes the bill is unlikely to pass and wrings its hands. What it really needs to do is point out that performance copyright is valid for the life of the performer plus seventy years, an absurdity given the constitutional provision that copyright is ostensibly designed to promote innovation -the current value of such a right beyond twenty or so years is virtually worthless if discounted by an appropriate interest rate- unless you are Walt Disney interested in preserving its control over the image of Mickey Mouse et al. No wonder the current law is known as the Disney Relief Act. In the meantime, the consumer pays in higher prices or the work is unavailable.
Aren't there a couple of possible workarounds to this?
First, there are compulsory licenses. These allow you to *perform* music without permission. You have to pay some organization like ASCAP, but *they* are the ones who have to try to locate the artist, so *that* becomes somebody else's problem. Performance includes things like radio airplay and streaming -- and there are ways people can record off both. So, orphaned music can be preserved by doing something like that and then relying on afficionados who don't want it to die recording off the air (or wherever) and, perhaps, seeding torrents. Anything that makes it onto peer-to-peer and is popular enough there becomes nigh-immortal.
Second, there's anonymous uploading to the likes of YouTube and other web based content hosting. If, for a given recording, the rights-holders never crop up, it's saved and people can access and download it. If the rights-holders *do* turn up, this will take the form of a DMCA notice to YouTube that yanks the video. Wait a bit, then contact the source of the DMCA notice, saying you have an old recording of this material that you want preserved and distributed (while not mentioning the YouTube video that was taken down), and attempt to negotiate for fully-legal release of the stuff -- you've now located that elusive copyright holder! If they won't grant permission, or won't without a truly extortionate price, publicize these facts -- you have a rare, old recording, it's part of our heritage, it's going to decay without a preservation effort, but *these guys* hold the copyright to the recording and apparently would rather let it die than preserve it. Calling them out in public before their fan base might apply some leverage to the situation.
Good luck getting the Times to have a rational discussion on so-called intellectual property. For a paper that champions liberal causes, they are surprisingly in support of so called intellectual property. But then they are in the content industry. So I guess money trumps liberal advocacy.