The artistic community is buzzing over news that the Senate has passed its version of the orphan works bill.
And for good reason. The legislation will significantly change the incentive structure in copyright enforcement.
As I discussed in a previous post, the legislation’s stated aim is to clarify the status of so-called orphan works–old copyrighted material whose rights owners cannot be located. The typical example cited to justify the bill is something old with a personal or educational value, such as a family photograph or a historic archive.
But what matters most is not the ideal application but the actual language, and this is what has so many people concerned.
At present in the United States, copyright protection is automatic–you do not have to register or even to place a copyright notice on your work in order to have significant legal protection against infringement. So long as you register before going to court, you can sue for substantial monetary damages and attorneys fees.
The proposed legislation changes that. If the infringer makes a “diligent effort” to find a copyright holder–including a search of Copyright Office records and as yet nonexistent databases of copyrighted material–the most the copyright holder can expect to get is a relatively modest licensing fee. For all but the wealthiest copyright holders, filing a lawsuit to protect their own interests would likely be a money losing proposition.
That cartoonists, photographers and other professional artists have been rallying against the bill should come as no surprise. Their work typically does not have a copyright notice in every image, and even when there is it would be easy to drop for viral distribution.
As even copyright reform advocate Larry Lessig noted in a New York Times op-ed, the practical impact of the law, if passed, would be to create a de facto registration requirement, since the only way for artists to have meaning protection against infringement would be to register with the Copyright Office or a searchable online database. For most artists the cost of registering every publicly accessible image would be prohibitive.
The future of the proposed orphan works legislation remains uncertain. It still has to get through the House, and depending on the version passed further revisions may be necessary. Whatever your assessment of this issue, if you want to have an impact on the debate the time to speak is now.