The House of Representatives has adjourned–for now–and unless the Clerk was asleep at the keyboard the so-called orphan works bill did not pass.
That means the bill is dead and gone, right?
Not really.
If we’ve learned anything from reading comics, nothing is dead unless we see a corpse–and even then, chances are the deceased will eventually come back to life. Law is much the same way. Since there has been so much confusion about the state of the bill over the past few days, here’s a brief explanation of what happened this week and what it means for the future.
When last we left the proposed orphan works legislation here at Blog@, the Senate had passed its version of the bill. In keeping with the system here in the U.S., this action was reported to the House. The Senate bill was then referred to the House Committee on the Judiciary.
This is when the rumors started to fly. The Judiciary Committee did not send the legislation to the entire House, which led some to conclude that the orphan works bill had joined the choir invisible forever and ever, amen.
But that’s not exactly what happened.
The immediate concern for the bill’s opponents was a procedure called suspension of the rules. Under House Rule XV, on Mondays through Wednesdays and the last six days of a session of Congress a bill can be passed even if it hasn’t been reported from committee.
Reports from various web sites indicated that at least one influential champion of the the orphan works bill–in either its House or Senate forms–was planning to put it up for a vote under the suspension procedure. Had the opposition quit following the news of the bill’s supposed death, there’s a real possibility that the bill might have sailed through with little to no warning.
Now that we know the House did not take up the bill under suspension of the rules, doesn’t that mean the orphan works legislation is finally dead? After all, the fact that the Senate passed its version becomes meaningless with the start of the 111th Congress in January of 2009.
Again, the answer is no. Although the House has reportedly adjourned until January, there remains a possibility, especially given the economic crisis, that it might reconvene in a lame duck session after the election, at which point a member might request a suspension of the rules to pass the bill.
And that’s not all. A bill’s failure to pass in one Congress does not prevent it from being introduced again. Word on the Hill is that new versions of the orphan works legislation will be introduced in both the House and Senate next year, with the Senate version being the likely template.
As I indicated in my first post on this subject, the most important time for expressing your position on a bill is the period before Congress takes public action. Savvy legislators only take things to that point when they’re likely to win, which is one reason why the initial failure of the bailout proposal came as such a surprise. Whatever your position on the issue, you should not assume from the absence of visible movement that this proposed legislation will never come back to life.
October 3rd, 2008 at 11:23 pm
Great piece, Jeff. Thanks for taking the time to elaborate on this issue.
October 4th, 2008 at 3:59 pm
I’m honestly still a bit confused by what all of this details…can someone send me a link to where I can read more about it in simple terms, everything this is entailing? I hate admitting to my stupidity but want to know more about it…I get the general premise, but want to know more about the dirty underside.
October 4th, 2008 at 8:15 pm
This might help.
October 5th, 2008 at 4:30 pm
Aww, c’mon now, JK (LOL)!
October 5th, 2008 at 5:32 pm
Hi. I earn my living as an illustrator, am a long-time comic book fan, and I’m totally against the Orphan Works Bill as written. I’m glad it’s been brought up on this website. Here’s an anti-Orphan Works blog site that goes into all the excruciating details. This site is run by illustrator Brad Holland, a man who’s been illustrating for decades and is a leader in the illustration community.
http://ipaorphanworks.blogspot.com/
It’s very complex, and hard to reduce to a quick, easy-to-understand sentence or two, but I’ll try to give you my understanding of it:
This bill is being pushed by corporations, including Microsoft. It’s being sold to lawmakers and everyday folks as a way to free up artwork and photographs which are “out there” but has been orphaned due to the lapsing of copyrights, deaths of creators, etc. It’s supposed to make things easier for researchers, libraries or people who just want to use old, un-owned images. This, in itself, isn’t a bad thing. But this bill goes way, WAY beyond this.
Unfortunately, it’s a huge trojan horse that will allow corporations to mine publications and the internet for ANYONE’S images, steal them, and then sell them. It’s theft.
Here’s how the evil works: once this bill becomes law, Corporate Registries will spring up. In order for an artist (already a generally poor group of people) to protect his ownership of his artwork (currently protected just fine under copyright law) he will now be required to PAY to register his work — each piece of work — with any of a number of these registries. Now, along comes Google or Corbis or whoever. They find your image on your website. They take your image, remove any identifying marks, do a “due diligence” search in say, three registries, can’t find you as the owner, because you didn’t register with those three registries. Now the evil corporation can claim that they’ve done the legwork, found the image to be an orphan, and now they can legally claim ownership of the work.
Here’s the kicker: even if you have the evidence to PROVE that you conceived and created the artwork or photograph, you WOULD NO LONGER BE THE OWNER, and would have no legal right to the artwork. Simply because you didn’t pay to register your work with the registries.
Making a living as an illustrator is hard enough these days. Please understand that this is legalized theft of artist’s work. It’s un-American. Well, it’s un-American, if “American” is life, liberty and the pursuit of happiness. It’s American, if you believe that what’s good for large corporations is what’s best for America.
Scott R. Brooks
Illustrator
October 5th, 2008 at 10:04 pm
THANK GOD!!
The evil has been beaten back…for now.
Scott, thanks for the readers digest version, I’ve read several, but none quite as clear as yours. Thank you.
And Brad Holland is a heckuva’ guy, I have to say.
October 6th, 2008 at 1:18 am
This bill is the only way to free up the large quanity of films sound recording,sheet music and books caught in copyright limbo! Companies now out of business or now surviving heirs.
Right now films are deteriating to the point of uselessness - especial older film on nitrate film stock which is VERY voitale.
Sure there’s some spots of the bill that could be improved and worked out, but the artistic community can’t see the forest through the trees.
Too freekin’ bad if an artist can’t afford to PROTECT their works. If a person can’t be professional and register their works (As it was with the pre-1976 law) then they don’t DESERVE
protection.
October 6th, 2008 at 9:13 am
Hmm … I very reasonably tried to answer Denny’s post, but was told my response was spam. Very odd. I didn’t curse or put any links in it. I DID use the word “socialist.” I wonder if that triggers a spam warning….
Scott
October 6th, 2008 at 10:03 am
>DennyWilson
The two issues you point to are not conceptually dependent on each other (at least according to my understanding of the bill). One can probably address the “orphaned” works while not opening the door to theft of unrecognized/ unregistered pieces. Even providing for a possibility of theft is an ethical issue in regards to hiring/employment standards.
In any other field/business, this situation would be the equivalent of some employer snagging someone off the streets, telling them to work, and then kicking them to the curb when the job was done with no discussion on terms of employment.
Professionalism has its place and it applies to both sides.
October 6th, 2008 at 10:15 am
Dave Stevens used the likeness of Betty Page without her permission in the Rocketeer. He used several photographs from the Movie Star News in his histories. And he is all be singly responsible for bring Betty back into the public consciousness.
And shall we cast or minds back to the 8,000 THUNDER Agents adaptatio that came out in the 90’s when everybody claimed the copyrights had expired?
There are indeed arguments to be made for being able to mine orphaned works.
I’m amazed that this is being viewed as such a black-and-white issue. I can come up with lots of reasons this would be a good law; I can come up with just as many ways it could be abused. That doens’t mean you dump the idea, it means you come up with ways of making the concept work.
Here’s one, off the top of my head - if you want to mine a supposed orphan work (which let’s assume requires a due dillegence copyright search, just as you have to do for copyrighting something today), you place A Sum Of Money in an escrow account. If the owner of the item comes along and proves ownnership with a reasonable period of time (Pick a number, three years), they get the money and contractual negotiations must begin. If it’s not claimed, the conyright is declared abandoned.
Don’t just stand there saying something won’t work, get involved and come up with ways so it WILL work.
October 6th, 2008 at 10:51 am
Vinnie,
I agree with you, as does most of the artist community. True Orphans should be freed for use. But this particular piece of legislation is a “rich getting richer” scheme. I’m going to copy in some text from the latest mailing from the Illustrator’s Partnership of America, which has led the opposition to the Orphan Works bill (as written), that should explain our concerns. It also shows how your suggestion of “getting involved” through official channels has been stymied. Only a grassroots effort has kept this roll-back of copyright laws from happening. (I hope it posts…)
=======================
Catch 22
What many people don’t realize is that true opponents to the Orphan Works Act have had to labor under a Catch 22.
In 2006, when the bill was first introduced in the House, the then-Chairman warned that any group which opposed it would be “ignored” and “left behind.” Accordingly, only interest groups that agree to support the bill without fundamental changes have been allowed a voice in its drafting. Catch 22.
This is why the House bill has grown into a complicated piece of legislation. In addition to the databases where copyright owners would have to register their work, the House bill calls for the creation of a privately owned Infringers’ archive, sanctioned by the Copyright Office, where infringers would file a Notice of Intent to infringe works.
But a database where infringers can register their paperwork won’t protect your work - it can still be infringed. In fact, as a for-profit enterprise, the Archive will be in business to promote infringements. Its inclusion in the bill will simply give middlemen a chance to create the Archive, cutting themselves in as additional beneficiaries of the legislation.
As a result of this Catch 22, true opposition to the bill has had to come from the grassroots. We’ve had to fight against it from the outside. And as a cottage industry, we don’t have the lobbying resources of Big Internet firms and others.
Last spring we were warned not to oppose the bill at all because we’d be “rolled over” if we tried. But since then, more than 75 professional organizations have come together to oppose it. This represents more than half a million rights holders - and the number is growing daily as more people find out about it. This grassroots response has been unprecedented in the history of our field.
Where do we go from here?
The problem with this legislation remains its central premise: It creates the public’s right to use your work as a default right, available to anyone whenever you fail to make yourself sufficiently available for them to find.
This is a radical change to the way our government views private property. And we cannot see surrendering the exclusive right to the work we create to have a “seat at the table” of those dismantling that right. So, as we extend our most sincere thanks to all of you for your quick and heartfelt responses over the last weeks we hope to build on that momentum in the weeks ahead.
For the next month, lawmakers will be home campaigning: every member of the House is up for reelection. This means it would be the time for artists in each district to schedule a personal appointment with their representative. Write them and fax them at their home offices. Meet with them if you can. We’ll post talking points on our blog: http://ipaorphanworks.blogspot.com/
Tell them that you’d support a true Orphan Works bill, and refer them to the Amendments submitted to the House Subcommittee on July 11 by the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America. http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html If the real goal of this legislation is to benefit libraries and museums, our amendments suggest a precise way to do it.
_______________________________________________________________
Over 75 organizations oppose this bill, representing over half a million creators.
U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world’s artists.
October 6th, 2008 at 12:19 pm
Except “true orphans” are free to use. If no one holds the copyright (or no one knows that they own the copyright), then there is no one to sue you. So it’s a false problem.
What this work is designed to cover is material that someone assumes to be orphaned but isn’t… and it protects the person making the false assumption by stripping rights of control and the leverage to sue away from the rights owner who has been transgressed upon.
October 6th, 2008 at 12:26 pm
Thanks Jeff, for as always, presenting a complex, real world tangent to comicdom, and breaking it down so clearly. Nat, yours is the most succinct, cogent, hysteria-free argument against any iteration of the bill that I’ve ever seen. Thanks for that.
October 6th, 2008 at 12:36 pm
Nat — that’s EXACTLY it! You’ve boiled it down to a sentence. Excellent. This bill puts a terrible burden on artists, while stripping them of the ability to sue.
Scott
October 6th, 2008 at 1:20 pm
I think I’d very much like to know what Vinnie and especially Denny have to say now that they’ve seen the truth… what this law is really about.