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.
October 1st, 2008 at 1:15 am
The Webcomics Weekly podcast addressed this bill a couple of months ago. Whether by design or not, this bill sounds like a major case of abuse waiting to happen.
October 1st, 2008 at 2:46 pm
Everybody is a panic about this.
The Orphan Works Bill’s main purpose is to free up works -particularly film - that have been abandoned plan and simple.
It’s not about ‘legal stealing’ of works,etc.
October 1st, 2008 at 3:28 pm
What the bill is “about” (which I guess refers to the intentions of its authors) and what it would allow in practice are not necessarily the same.
October 1st, 2008 at 4:13 pm
There’s an awful lot of well-intentioned laws out there that have been used detrimentally. This will be one of them if it’s allowed to pass.
Maybe I’m just being a conspiracy nut, but I find it real interesting this is being pushed through at the same time as the creation of a copyright czar. This thing has ‘Big Brother’ written all over it.
October 1st, 2008 at 11:56 pm
The problem of copyright infringement already exists. This bill, as written, simply replaces it with three “for pay/profit” search engines which will not communicate or cross-reference each other. In order to delare an image or complete work “orphaned”, the infinging party needs only to access one database, while the creator must register all material either separately or in bulk (full art, colors, designs, premise, model sheets, etc.) with each database, creating a much more substantial cost. If the work is still found to be copyright protected, litigation (the only way an artist can profit or protect his creation) is avoided through a small liscencing fee. Big brother has nothing to do with it. This has everything to do with pleasing your political party’s contributors and tax base, and stands against the basic foundations of inovation and individual acheivement on which America was built.
October 3rd, 2008 at 10:03 am
There’s good reason why people are panicking about the ill-advised Orphan Works bill. It started with the stated intent of making it easier for museums and librarians to use historical works without permission for non-profit purposes if the owners were deceased or off the radar. There was lots of talk about reviving old periodicals and archival film footage. I supported that early version of the bill 100%. That language is not in the bill, however… the focus has quietly shifted to encompass any art or photograph without a copyright attached, and to allow infringement by big business. Does anyone believe this bill was jammed through Friday night during this financial crisis because the rights of librarians matter deeply to the Senate??
Every illustration I’ve created includes a copyright line, even though it is not required for copyright protection. But all an infringer would have to do under this bill is to erase or crop out the copyright, claim he couldn’t find me, and then use my illustration for any purpose he sees fit, on mass market products or in ads. Imagine an issue you are strongly against, whether you’re conservative or liberal, and now imagine your artwork being used without your permission to promote that issue–it’s an outrage. The infringer only has to claim that he did a “reasonable” search for the owner, and couldn’t locate him. Easy enough to do–just pick your keywords badly and you won’t ever find the owner, even if they are using that illustration commercially and are published online.
The reason this bill is being hotlined again is not out of concern for librarians or museums… it’s because under the current version, big business will be able to infringe upon anyone’s artwork they please, without permission from the owner, which flies in the face of existing US copyright law. If that is the unintended consequence, then the language of the bill needs to be sharpened up to exclude commercial interests from benefiting. It’s a simple solution–so why isn’t that language in the bill?