Erin Jay

Congress is likely going to be considering new Orphan Works legislation in the upcoming session This legislation would require all creative works to be registered, for a fee, with private copyright registration companies. If a work is unregistered or cannot be located with a good faith search, it becomes an ‘orphan work’ and thereby become free for both non-profit and commercial uses.

What does this mean for us? Well, if current statements are true and the proposed legislation bears a strong resemblance to the version of the bill put before Congress 2 sessions ago it means that a lot of online artists are going to be boned royally if this passes.

Here’s a breakdown of why this legislation, if allowed to go through, is incredibly bad for artists, writers, and musicians, especially those of us who post work online:

-It makes no distinction between the work of international artists and the work of American artists. Which means all of you lovely people in Australia and the UK have just lost your copyright in the United States unless you’re willing to pay a fee (and don’t get me started on exchange rates) to at least one, and more likely several, American companies. This is the same reason I detest the current internet gambling laws in the US; American legislation should only affect American citizens. When you start trampling on the intellectual property rights of the citizens of other countries, you are violating international law. And guess what? By allowing American companies to ignore the intellectual property rights of foreign nationals, we allow them to do the same to us under provisions in the international copyright law.

-It places an onerous financial obligation on not just working artists, but anyone who shares an image or a piece of writing online. As artists we already have significant expenses related to the creation of our respective works. What this legislation does, in essence, is force artists to pay a fee to a privately owned company for the ‘privilege’ of creating our work and retaining the right to use it as we deem fit. Using myself as an example: Between my fractals, writing, photography, painting, and other pursuits, I create approximately 100 new pieces of art a year. If there is only one registration company, and their fee is a supposedly reasonable $5 per work, that means I’m paying $500 a year to be allowed to retain my copyright. If there are 3 companies, I’ll have to pay $1500. This gets even worse if you consider casual posting. Assume the average family takes 300 photos a year, between birthdays, vacations, and other everyday things. If you don’t register your private family photos with these companies (to the tune of well over $1500), you could find little Jimmy’s birthday photos plastered on a billboard without your consent. Which brings me to my next point…

-If your work is deemed to be an orphan work, you have little hope of regaining your copyright or of receiving full compensation for its use. If you take someone to court for improper use of your work, the onus is on you as the creator to prove that the work is yours, and if the courts decide in your favor, there is no allowance in the legislation for the recovery of legal fees. Not only that, but the legislation does not require that a company cease commercial use of your work, even if a court rules in your favor! The only requirement is that the violator of your copyright pays you ‘fair value’ of your work. You lose your right to damages, and you lose your right to tell them to stop.

-Anyone can register an image without proof that they actually hold copyright. Which means that Billy Joe Artthief from down the street can register your works and steal your copyright. Once again, if you sue and manage to win your copyright back, you are not entitled to damages.

-The technology being proposed for use of enforcement of the law has a woefully high failure rate. On March 13, 2008, PicScout, the creators of one of the software applications used in the registries, stated to the House IP subcommittee: “Our technology can match images, or partial information of an image, with 99% success.” Please turn that around, and notice that 1% failure rate. That means for every million works that actually are registered, 10,000 of them are going to not be found in a search and deemed to be an orphan work anyway, in spite of being properly registered.

This is just the tip of the iceberg, folks—the problems with this legislation are myriad. But what it all boils down to is that IT IS LEGALIZING THE THEFT OF YOUR WORK! This is the reason why international copyright law expressly forbids coerced registration as a condition of maintaining copyright.

So please, if you live in the US, get in contact with your local US representative and let them know why they need to vote against this legislation. It doesn’t need to be as long or as detailed as what I just wrote, but it does need to be heartfelt. Let our government know that we do not want them legalizing the theft of our creations!

More links:

Mind Your Business: You Will Lose All The Rights to Your Own Art an editorial about the proposed legislation. Makes many of the same points I just did, plus several more.

The ASMP page monitoring the status of the current Orphan Works legislation.

The thread in the RedBubble General Discussion Forum

Helen Bascom’s journal article with commentary and a sample letter to your legislator

EDIT:

There are two online petitions now circulating to petition against the Orphan Works legislation. Please click the links below if you wish to sign them.

Deviants Against the ‘Orphaned Works’ Bill

Say ‘NO!’ to the Orphan Works Act