An article every artist and photographer needs to read - Orphan Works Bill (locked)

I found this illuminating article in Dave Moilanen’s Journal

Honestly, what is the world coming to?

Mind Your Business: You Will Lose All The Rights to Your Own Art

Ouch.

What can those of us outside the USA do to help?

I have journaled about this issue too. I have links for people in the United States to contact their State representatives and a sample letter of protest. CLICK HERE for more information.

We must stop passage of this legislation.

Here is an excellent and concise breakdown of what this will mean to both American and international artists if this bill is passed.

People are lazy until it hits them in the wallet. But by then it usually far to late to do anything about it. We have to keep spreading the word.

For U.S. members: Find and write, call or email your Congressmen and Representatives:

http://www.visi.com/juan/congress/

Minerva, if you’re around I didn’t think you would mind me copying this here.

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Below is one suggested sample letter. Copy and paste:

Again, if you are a constituent, say so at first and cite your profession. Because the bill is being fast-tracked.

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

SAMPLE LETTER: (copy and paste)

==========================================

The Honorable _ ___ U.S. House of Representatives Washington, DC 20515

Via Facsimile RE: HR 5439

Dear Rep ____,

(INSERT INTRODUCTORY SENTENCE HERE) As a small business owner (or concerned artist/citizen), I am writing to express my grave misgivings about the Orphan Works Act of 2006 (H.R. 5439), now before the House Judiciary Committee. I strongly oppose this bill.

The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It was drafted to allow museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who have died or abandoned their copyrights.

Unfortunately, it would do this by legalizing the infringement of all works – old and new, registered or unregistered, published or unpublished, domestic and foreign, managed or abandoned, whenever a work is unmarked so long as an infringer asserts that he or she has made a “reasonably diligent search” to find the rights holder.

This would expose to misuse countless works of visual art because clients often require artists to omit identifying information from their work, or because credit lines can be removed by feckless or unscrupulous users. Not only artists, but industries which license art can be harmed by this carte blanche license to infringe.

In the interest of brevity, I am enclosing some basic objections I and other copyright holders have to this bill.

• The Act is written so broadly that its use cannot be confined to orphaned work situations.

• It would permit an infringer to determine when he or she has made a “reasonable effort” to locate me even though the infringer would have a financial interest in not locating me.

• It would be retroactive, which means that work I created under existing law would be exposed to infringement because I didn’t take steps to protect my copyrights which the Copyright Act never required me to take.

• It would expose my work to infringement immediately upon creation, even though I am alive, in business and managing my copyrights.

• It would place an impossible burden of diligence on me to protect my work because I will never have the resources to police infringement, which can occur anytime, anywhere in the world.

• It would remove any meaningful remedies for infringement, even though the threat of meaningful litigation is the only means I now have to enforce copyright compliance.

• It would impose on me the burden of proving in court the amount of “reasonable compensation” I could collect from someone who has infringed my work as an “orphan”.

• But it would limit “reasonable compensation” to whatever sum an infringer is willing – or able – to pay.

• It would deny me injunctive relief in situations where the entirety of my “orphaned” work has been used in a so-called “transformative” work.

• And it would undermine my option to retain or sell exclusive rights to my clients because neither I nor my clients could ever guarantee that the work would not be used by others – even for purely commercial purposes.

• The inability to retain or sell exclusive rights would greatly decrease the market value of my work because market value is determined by the licensing potential locked up by exclusive rights.

• This bill would prevent me from restricting certain unwelcome uses of my art.

• And it could drive my work into low-end markets where I would otherwise never license my work.

• At present, the law does not allow infringers to claim my work by infringing it, but this legislation would let them.

• Yet by “limiting remedies” the bill guarantees that the cost of suing an infringer could exceed whatever sum I might recover in a successful court action.

• While the bill would limit the amount I could recover from an infringer, it would set no limits on the amount an infringer could win from me in a counter suit.

• And while the bill would not legislate “formalities”, it would have the same effect, because it would require artists like me to rely on marking, registering and meta-data as a condition of protecting our property.

• This would violate the Berne International Copyright Convention and fail the three-step test of TRIPs, which requires that exceptions to an artist’s exclusive rights should be limited to certain special cases, not interfere with an artist’s normal exploitation of his work and not prejudice a rights holder’s legitimate interest.

In short, the Orphan Works Act fails to properly define the category of orphaned work and it sets the infringer’s bar of due diligence so low that it virtually guarantees abuse.

It would force into the courts countless business decisions which should be made in the marketplace, and create problems which do not now exist but which would require the expansion of the entire Federal judiciary system to solve.

For those and other reasons, I ask you to consider the harm this bill can do to existing businesses and artists and vote against it unless it is amended to do the following things:

a) Precisely define an orphan work as a copyright which is no longer managed by a rightsholder;

b) Raise the infringer’s bar of due diligence and define precisely the steps a user must take before infringing a work;

c) Eliminate the unrestricted use of a copyrighted work in a “transformative” work; d) Restrict the use of true orphaned works to not-for-profit uses;

e) Restore full remedies for infringement as the only means rights holders have to protect their intellectual property.

Respectfully,

(end of sample letter)

I also found this chart that clarifies public domain and copyright terms within the US.

I’ve been doing some reading from the link Joan provided above and didn’t realize this has been in the works for over 3 years.

I’ve also read the counter-argument/misconception article posted by Scott above and while it is well thought out and a bit relieving, all in all, I think such a bill would cause more problems than it will solve. As the law stands in the US at present, all creative compositions are automatically protected by basic copyright from the point of creation.

So what is the true motive for such a bill? Is it really just about the 100-year-old historic photos in my great-aunt’s attic (that are still under copyright) that I want to donate to a local museum? Is it really about the wedding photographer I can’t track down whose work I want to restore for sentimental, familial purposes? Or is there something more sinister at work here?

While the above examples pertain to work still under copyright (Lifetime + 70 years), they are already considered orphan works if the copyright holders cannot be found. While it is seems like a gray area to me, no law is perfect. If the copyright holder does turn up, deal with it! It seems ridiculous that such a law should pass to clear up such trivial issues when they are better dealt with on a case-by-case basis, rather than risk jeopardizing billions of artistic creations and forcing registration fees upon every single thing we’ve ever created.

If ever such a law comes into existence, does everyone worldwide lose their copyright protection within the US unless registered? If it does, I for one will be forced to take down everything I have ever created and never share any of it again because there is no way I can afford to register 3000 poems, 100’s of stories and unfinished/unpublished novels, and thousands of photos and art.

Other than here I’m reducing all internet images to 100×400 pixels at 150 pixels per inch. My signiture is already registered copywriten with the three registers so anything with the signiture is defaulted to its protection but my senitor has yet to elaborate with me on this just the copywrite office.

If this happens i’m changing my major to engineering. I love art more than anything in the world but i’m not a fool either. If I become too depressed from being away from art i’ll just move to another country.

people are rather panicked about this so i have a rebuking article that might be helpful. it’s full of links to supporting material that may offer more illumination on the subject.

As an American I have personal experience with the United States Government and it’s legislative processes. Laws have a way of being sneaked through Congress. Often one law is attached to a completely unrelated law and they are passed as a package. This is called the “pork barrel” (i.e., the extra bit of fat in the meat of the legislation).

The only reason this law has failed in the past is because people stood up and raised a bit of hell about it.

When your government introduces very similar legislation, then you can be a naysayer or panic as you see fit.

Currently there is no mandatory registration law in the U.S. This statute will make your work orphaned unless you register. I really think that it will be defeated again.