As I was looking over the many permutations of copyright terms and requirements, ending with the current morass, I suddenly was reminded of Bill Cosby's old routines. Remember "No one will ever touch anybody ever again!" in the car ride with children?
That's what the current scheme is like. Like among all the clamoring voices arguing about whose term is longer and who has to renew, frustrated Papa Congress said "Okay, everything will be copyrighted forever, now SHUT UP!!!!"
And we have. And we shouldn't.
In reality, only a few people even care about copyright. Those that hold it on commercially viable works do, since they produce income. They should, that's what copyright is for, although the phrases limited terms and public good seem to have been forgotten.
The other people who care are librarians and archivists. We should, our profession depends on the intellectual property of others, and both legally and ethically we should respect it.
But we shouldn't fear it. And we do. Millions of archival items and books languish because people, mostly administrators, fear a lawsuit if they digitize or even just copy. Despite Lolly Gasaway's infinitely useful chart, they don't understand the law and they don't understand risk assessment.
Does it matter that no one has produced the documentation to prove that great-great-great grandad wrote that letter? Let alone got all 187 heirs to agree on who owns what portion of the hypothetical copyright? Would they then be able to agree how to split the 187th of a dollar they earned from the copyright?
In reality, most heirs are just glad to find a digital copy of their ancestor's letter, which they didn't know existed. They understand that they would spend more to research and defend a hypothetical copyright than they would ever earn.
Why don't administrators?
I researched a collection of some academic interest and maybe even a little financial one. The possible corporate owner (after many mergers) has no interest in the rights. There is documentation that they freely gave away the images without restrictions. They were then published in the 40s and 50s without copyright notice. They have been reproduced since they have been in an archive these last 30 years without anyone claiming copyright. Heirs who were contacted say they don't have any rights to them, because they were works for hire. I researched at the Copyright Office and found no records.
Where's the risk here, or in the hundreds of other lesser known collections?
Still, administrators there say they can't be digitized until any possible copyright expires. These are people so risk aversive that when they sneeze they say "Hand me a Kleenex, a trademarked name duly registered and enforced".
ARL is heading up a slow and painful study of the proposed Orphan Works Act, while the Google Guys forge ahead and Brewster Kahle fights on the legal battleground. Meanwhile, millions of people post copyrighted work (perhaps unknowing that it is) online in Flickr and YouTube and blogs and Facebook.
Except adminstrators and congressmen from the last century. Let's all write them letters and put stamps on them and see if the Pony Express can reach them.