The U.S. Congress is considering a major reform of copyright law intended to solve the problem of “orphan works,” copyrighted material whose owner cannot be found. This “reform” would significantly limit the rights of original artists and unnecessarily burden them with costs and bureaucratic paperwork.
The bill, H.R. 5889 “Orphan Works Act of 2008,” is being rushed through Congress with little debate. According to OpenCongress.org:
This bill would limit the amount of damages a copyright holder could collect from an infringer if the infringer performed a diligent search for the copyright holder before using their work. The goal of the legislation is to free up for reuse copyrighted works whose holders cannot be found. It would also set up a process for the Copyright Office to certify commercially-produced visual registries to help people locate the holder of a copyright and prevent the orphaning of works in the future.
Copyright used to be an “opt-in” system that required artists to explicitly register and renew their copyrights. But in 1978, Congress created an “opt-out” system where copyright protection is automatic the moment a work is published and lasts for the life of the author plus 70 years.
As discussed in the New York Times, “the solution before Congress is both unfair and unwise.” The bill would “encourage copyright infringement by assuring that the costs of infringement are not too great.” Also, the proposed change is “unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise.”
If this new bill concerns you, please consider contacting your Congressional representatives. You can send them an electronic form letter, which is reproduced below to provide additional information on this subject:
As a constituent, a creator and a small business owner, I’m writing to ask that you vote no on the Orphan Works Bill now being rushed through Congress. There are good reasons why both the House version (H.R. 5889) and the Senate version (S.2913) have become controversial: neither is the simple amendment to copyright law they purport to be.
The backers of these bills are circulating a number of misleading statements about them. Please let me respond with some facts.
“The Orphan Works Act is a small adjustment to copyright law.”
False. The Orphan Works Act is a radical reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and to exploit it – even for commercial purposes.
“The goal of copyright law is to make work available to the public.”
False: Copyright is “a legal device that provides the owner the right to control how a creative work is used.”
By allowing infringers to use any owner’s work without his knowledge or consent, the Orphan Works bill specifically nullifies that primary right.
“The Orphan Works Act is based on Copyright Office recommendations.”
True, but the Copyright Office studied the specific subject of older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets, a subject the Copyright Office never studied.
“An Orphan Work is a work whose author is hard to locate.”
False. A professional artist may be easily locatable to hundreds of clients, but still be hard for millions of people to find. The failure of any one person to locate an easily locatable person should not become a justification for appropriating that person’s creative property.
“The Orphan Works Act will benefit artists.”
False. The bill will benefit only re-mix artists, who cannot create without appropriating the work of others. It will not benefit professional artists, who generally must indemnify publishers that our work is original and not based on infringements.
“Infringements occur now, so under Orphan Works law nothing will change.”
False. Infringements do occur now, but they’re illegal. This bill will legalize millions of them, encouraging rampant abuse of loopholes by bad actors.
“But infringers will have to do a reasonably diligent search before infringing.”
False. These bills are filled with ambiguous terms such as reasonable diligence, which will be left to courts to interpret. Because of these ambiguities, the same work may be judged an orphan in one court proceeding and not in another.
“But if the rights holder comes forward, he or she will be entitled to reasonable compensation.”
False. Since orphan works transactions will occur only after infringement, the rights holder will have no leverage to bargain for more than the infringer is willing to pay. In reality, serial infringers will establish low “reasonable” fees, which will effectively become the legal standard in lawsuits regarding such uses.
“But artists will be free to take infringers to court.”
True, but artists should not have to go to court on a regular basis to contest the diligence of an infringer’s search or prove the value of their work for uses they did not authorize and to which they may never have consented in advance. As a business person, I make my living from voluntary business transactions, not costly and time-consuming lawsuits.
“Artists who have registered their work can still receive statutory damages for illegal infringements.”
True, but only if the illegal party can be positively identified in advance. Because the Orphan Works bill will legalize “good faith” infringements even of work “orphaned” by prior illegal infringements committed by unknown third-parties, the inability to identify the illegal infringer will effectively nullify the artist’s ability to get legal counsel on a contingency fee basis and this will nullify his ability to determine guilt and receive damages.
“This bill will help copyright buyers find copyright sellers.”
False. It will do the opposite, by letting users infringe the works of authors they can’t find. By contrast, there currently exists a robust business by which artists employ agents, directories, source books and other advertising venues to make themselves available to users.
“The bill does not mandate artists to register their work with private databases.”
True, because mandatory registration would clearly violate Berne, NAFTA, TRIPS, WIPO and WTO treaties. But in reality, the effect will be the same, because artists who don’t digitize and register their entire inventory will find their unregistered work vulnerable to infringement.
“Artists are over-reacting to this bill.”
False. The cost of compliance alone will be prohibitive for many, if not most artists. Digitizing and registering thousands or tens of thousands – or for photographers, even hundreds of thousands – of images, at a cost of between $5 to $100 per image will be an impossible burden for many to meet.
“The bill will only affect the work of professional creators.”
False. It will affect every visual image from professional paintings to a family’s vacation photos or any work placed on the internet. Since ordinary citizens are unlikely to comply with the onerous and costly demands of registering work with commercial databases, the Orphan Works bills would effectively strip millions of voters of their basic copyright protection.
To sum up: this bill would force millions of individual copyright owners to spend time and money digitizing work at their own expense and handing it over to unknown privately-owned databases for the express purpose of making their unregistered works easier for infringers to infringe. No sensible business person would do this willingly, and no law should make them.
While individual artists, small businesses and ordinary citizens may be harmed by this bill, large interests are looking to profit. Google has already stated that they intend to use millions of orphan works. Does this sound like a bill that is merely intended to make some archival work available to libraries and museums? To put it bluntly, something is wrong here!
This bill was planned behind closed doors, introduced on short notice and fast-tracked for imminent passage. THERE IS NO NATIONAL EMERGENCY TO JUSTIFY RUSHING THROUGH ANY BILL THAT CONSTITUTES SUCH A RADICAL CHANGE TO THE OWNERSHIP OF PRIVATE PROPERTY. Please vote no on this bill and send it back to committee with a demand that it be subjected to an open informed, and transparent public debate.
Artists United Against the U.S. Orphan Works Acts
Article published on July 8, 2008
|If you like this article, please share it:|