Superman is not the only news story pertaining to comics and copyright. Last week, an Animation World article by Mark Simon caused a bit of a stir. The subject: a proposal to amend the U.S. copyright law regarding so-called “orphan works,” material whose creator ostensibly cannot be identified or located.
According to Simon, Congress is poised to pass legislation that would essentially eviscerate copyright protection for illustrators, photographers and other creators. Blogger Meredith Patterson, in a widely acclaimed post linked on Boing Boing, ostensibly refuted Simon’s article by showing it to be “poorly researched,” “illogical” and “retardedly” insistent that artists write their representatives about the bill.
Since this is a pressing IP issue that has engaged both the animation and comics communities, let’s set aside our Siegel series for a moment to determine whether artists concerned about this issue are indeed over-reacting.
Before I start this Q&A, I want to note that I am not writing this as a partisan for either side. My primary aim is to explain from a neutral perspective why so many artists are concerned about orphan works legislation. If you want to understand why I asked the particular questions below, I recommend that you first take a look at the Simon and Patterson essays, with the understanding that I am not endorsing everything in either one. You may also to skim through the 2006 orphan works bill and, for a comic artist’s perspective, listen to this podcast interview with Alex Saviuk.
Why all the fuss about orphan works? On the surface, the need to make it easier to use orphan works would seem to be self-evident, so much so that a number of observers believe that some kind of reform will be passed. After all, if the copyright holder can’t be found, why should copyright law keep the work out of the public eye?
However, as is often the case in law, the devil is in the details. For one thing, the name “orphan works” is itself objectionable to some, as it implies that the bill extends only to works bereft of a living creator. Moreover, statutory language can have unintended consequences beyond otherwise benign ideals. In the case of the Orphan Works Act, language in the version originally introduced in 2006 can arguably be applied in ways that are detrimental to professionals who make their living from the sale of their copyrighted work.
Isn’t the Orphan Works bill dead? The original version of the Orphan Works Act did not pass in its first outing. This is not unusual, even if it does seem to have been unexpected at the time. Nonetheless, that doesn’t mean the proposal stopped being a live issue. As is once again not uncommon, negotiations over language continued behind the scenes and a new version is being prepared with the aim of being fast-tracked for approval this summer. This is why the relevant House subcommittee held a hearing on orphan works on March 13, 2008.
How would protecting the right to use orphan works affect today’s creators? The original version of the Act does not limit its scope to old material. It would apply regardless of when the work was created, from decades ago to the immediate present.
In brief, the Act’s currently available language would protect the use of orphan works by limiting liability for infringement when a “reasonably diligent search” was “unable to locate” the material’s owner. Under the current system, an infringer could be liable for costs, attorney fees and other substantial damages. The draft Act sets these damages aside when a court has found that the requisite search had been made. In that case, the remedy is limited to “reasonable compensation.”
By limiting the remedy to such a relatively small amount, the Act would considerably shift the incentive structure of copyright law. At present, copyists know that if they do not accede to a request to stop exploiting copyrighted work, they could end up owing an amount far in excess of any expected gain. Were the draft Act to become law, the infringers would know there’s a good chance they could face little more than the equivalent of a modest licensing fee–and that’s only if a copyright owner decides to risk the time and expense of a trial. The enforcement of copyright interests would arguably become impractical if not impossible for all but the wealthiest copyright holders, since the cost of a lawsuit can be orders of magnitude greater than the prospective compensation.
What about registration? Beyond assuming the risk of having to bear court costs and attorney’s fees, creators are also concerned about the prospective expense of making their work findable by a search. Photographers and illustrators feel particularly vulnerable in this regard, because it is so easy to separate their work from a visible copyright notice.
The Act may not require registration, but as a practical matter registration would be the only way to secure meaningful protection for works susceptible to copyists. However, artists have noted that registering each work with the Copyright Office would be cost prohibitive for many small- to mid-range businesses, as would be registering their works with the commercial private registries envisioned by the bill’s proponents as a way to make to make works more findable by a prospective infringer.
Doesn’t the Berne Convention make the fear of a registration requirement unreasonable? While the Orphan Works Act does not literally go against Berne by requiring government registration, it arguably creates a substantial disadvantages for anyone who chooses not to place all of his or her work on a government or private registry. Because unregistered material would be that much more difficult to find, failing to register creates a significant risk that a court will treat it as a material whose owner could not be found by a reasonably diligent search. For artists concerned about copying, that the Act may not technically require registration is just a matter of semantics.
Shouldn’t artists just wait until the language of the new bill is available? Whether it is “retarded” to raise concerns when a Congressional subcommittee is soliciting outside opinions on imminent legislation that the subcommittee chair has announced he wants to pass quickly is something I will leave to your discretion. There are reports that the latest version will have adjustments designed to address some of the concerns raised in regard to the 2006 version, but as of now the specific language is known only to the legislators, aides and lobbyists.
One thing to keep in mind, though, is that in law writing, as in law practice, the battle is often won in the drafting stage. Multi-billion dollar industries that stand to benefit from harvesting others’ intellectual property have been pressing Congress on this issue for years, and you can be sure that the pressure did not relent between 2006 and today. Speaking as a historian as well as a lawyer, I would observe only that the blogosphere’s insistence that artists wait in silence while elites write the law is not lacking in irony.