The orphan works act of 2008 (not about orphans)

[Eric L]

Hi,

THE ORPHAN WORKS ACT OF 2008 (IT'S NOT ABOUT ORPHANS!!), just passed the senate (09-26-08) and is going to the house .

This bill will destroy current copyright laws.

Please pass this along, THE ORPHAN WORKS ACT OF 2008 (H.R. 5889) is very bad. This bill is a rights grab that is bad for everyone in the creative field photographers, artists, writers, musicians etc.

Please send this info to everyone you think would be interested. This is an emergency and probably our last chance to stop it.

Thanks,

Eric


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Here is a link to an email system where it is easy to send a message to your representative. It is also a good idea to call their local office and express your concern and opposition to this bill in any form.
<http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321>


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Here is a sample letter that expresses some of the many problems with the bill.


As a constituent, a creator and a small business owner, I’m writing to ask that you vote no on the Orphan Works Bill now being rushed through Congress. There are good reasons why both the House version (H.R. 5889) and the Senate version (S.2913) have become controversial: neither is the simple amendment to copyright law they purport to be.

The backers of these bills are circulating a number of misleading statements about them. Please let me respond with some facts.

“The Orphan Works Act is a small adjustment to copyright law.”
False. The Orphan Works Act is a radical reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and to exploit it – even for commercial purposes.

“The goal of copyright law is to make work available to the public.”
False: Copyright is “a legal device that provides the owner the right to control how a creative work is used.” http://www.nolo.com/definition.cfm/t...468C0AFF8401F6 By allowing infringers to use any owner’s work without his knowledge or consent, the Orphan Works bill specifically nullifies that primary right.

“The Orphan Works Act is based on Copyright Office recommendations.”
True, but the Copyright Office studied the specific subject of older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets, a subject the Copyright Office never studied.

“An Orphan Work is a work whose author is hard to locate.”
False. A professional artist may be easily locatable to hundreds of clients, but still be hard for millions of people to find. The failure of any one person to locate an easily locatable person should not become a justification for appropriating that person’s creative property.

“The Orphan Works Act will benefit artists.”
False. The bill will benefit only re-mix artists, who cannot create without appropriating the work of others. It will not benefit professional artists, who generally must indemnify publishers that our work is original and not based on infringements.

“Infringements occur now, so under Orphan Works law nothing will change.”
False. Infringements do occur now, but they’re illegal. This bill will legalize millions of them, encouraging rampant abuse of loopholes by bad actors.

“But infringers will have to do a reasonably diligent search before infringing.”
These bills are filled with ambiguous terms such as reasonable diligence, which will be left to courts to interpret. Because of these ambiguities, the same work may be judged an orphan in one court proceeding and not in another.

“But if the rights holder comes forward, he or she will be entitled to reasonable compensation.”
Since orphan works transactions will occur only after infringement, the rights holder will have no leverage to bargain for more than the infringer is willing to pay. In reality, serial infringers will establish low “reasonable” fees, which will effectively become the legal standard in lawsuits regarding such uses.

“But artists will be free to take infringers to court.”
Artists should not have to go to court on a regular basis to contest the diligence of an infringer’s search or prove the value of their work for uses they did not authorize and to which they may never have consented in advance. As a business person, I make my living from voluntary business transactions, not costly and time-consuming lawsuits.

“Artists who have registered their work can still receive statutory damages for illegal infringements.”
True, but only if the illegal party can be positively identified in advance. Because the Orphan Works bill will legalize “good faith” infringements even of work “orphaned” by prior illegal infringements committed by unknown third-parties, the inability to identify the illegal infringer will effectively nullify the artist’s ability to get legal counsel on a contingency fee basis and this will nullify his ability to determine guilt and receive damages.

“This bill will help copyright buyers find copyright sellers.”
False. It will do the opposite, by letting users infringe the works of authors they can’t find. By contrast, there currently exists a robust business by which artists employ agents, directories, source books and other advertising venues to make themselves available to users.

“The bill does not mandate artists to register their work with private databases.”
True, because mandatory registration would clearly violate Berne, NAFTA, TRIPS, WIPO and WTO treaties. But in reality, the effect will be the same, because artists who don’t digitize and register their entire inventory will find their unregistered work vulnerable to infringement.

“Artists are over-reacting to this bill.”
False. The cost of compliance alone will be prohibitive for many, if not most artists. Digitizing and registering thousands or tens of thousands – or for photographers, even hundreds of thousands - of images, at a cost of between $5 to $100 per image will be an impossible burden for many to meet.

“The bill will only affect the work of professional creators.”
False. It will affect every visual image from professional paintings to a family’s vacation photos or any work placed on the internet. Since ordinary citizens are unlikely to comply with the onerous and costly demands of registering work with commercial databases, the Orphan Works bills would effectively strip millions of voters of their basic copyright protection.

To sum up: this bill would force millions of individual copyright owners to spend time and money digitizing work at their own expense and handing it over to unknown privately-owned databases for the express purpose of making their unregistered works easier for infringers to infringe. No sensible business person would do this willingly, and no law should make them.

While individual artists, small businesses and ordinary citizens may be harmed by this bill, large interests are looking to profit. Google has already stated that they intend to use millions of orphan works. Does this sound like a bill that is merely intended to make some archival work available to libraries and museums? To put it bluntly, something is wrong here!

This bill was planned behind closed doors, introduced on short notice and fast-tracked for imminent passage. THERE IS NO NATIONAL EMERGENCY TO JUSTIFY RUSHING THROUGH ANY BILL THAT CONSTITUTES SUCH A RADICAL CHANGE TO THE OWNERSHIP OF PRIVATE PROPERTY. Please vote no on this bill and send it back to committee with a demand that it be subjected to an open informed, and transparent public debate.

[Viira]

who came up with/wrote this bill?

heh - and by the time this bill is passed there wont be an internet for people to steal images from

[Eric L]

In the House, H.R. 5889 was proposed by Rep. Howard Berman (D-CA),

According to the NPPA <http://www.nppa.org/news_and_events/news/2008/09/orphan01.html> "On Friday there was an agressive, last-minute push by Congress to pass the legislation. Observers said the Hill was being "hammered" by communications from the library community (specifically the American Library Association) where the bill has wide-spread support."

American Library Association 1-800-545-2433. Keith Michael Fiels was appointed Executive Director of the American Library Association in July 2002.

[TommyO]

Well, I will not pretend to be an expert in copyright law. But, I do have friends in that field. So, I asked them their opinion of the Orphan Works Act and if the information contained here was accurate, truthful, or exaggerated. In doing so, I did learn a lot about the bill, as well as the numerous accounts, interpretations and opinions about it that exist. It sounds as though the subject is way too large to debate here. But, I will throw out some other opinions just to present both sides of the story for others reading this thread. Again, not my opinion, just some additional points of view.

One copyright attorney said:
Most copyright attorneys agree that the legislation has been out there for over three years and has had ample opportunity for discussion from all parties. It has changed and grown since its original conception, and currently includes adequate language to protect existing copyright owners just as well as existing laws do today. Those originators of works that cannot be located (because they never copyrighted their works, or have long since been deceased) are the target of the current legislation.


Marybeth Peters, Register of Copyrights, wrote:
The problem is pervasive. Our study recounts the challenges that publishers, film makers, museums, libraries, universities, and private citizens, among others, have had in managing risk and liability when a copyright owner cannot be identified or located. In testimony before the Senate, a filmmaker spoke of the historically significant images that are removed from documentaries and never reach the public because ownership cannot be determined. In testimony before the House, the U.S. Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that it and other museums cannot publish or digitize.

The legislation is sensible: it would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. But there are clear conditions designed to protect copyright owners. A user must take all reasonable steps, employ all reasonable technology, and execute the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts. The user must meet other hurdles, including attaching an orphan symbol to the use, to increase transparency and the possibility that an owner may emerge. If an owner does emerge, the user must pay “reasonable compensation” or face full liability.

Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree. First, all of these remedies will remain available (to the extent they apply in the first place) if the copyright owner exists and is findable. Second, the legislation will not limit injunctive relief, except in instances where the user has invested significant new authorship and, in doing so, has relied in good faith on the absence of the owner. Third, statutory damages, which are available only when a work has been timely registered, will usually not apply at all because the overwhelming majority of orphan works are not registered by owners but languishing in institutions and private collections. Fourth, one of the basic tenets of the legislation is that the available remedy will be proportionate to the nature of the infringement. Reasonable compensation, a standard derived from a leading case on copyright damages, will usually be within the range an owner could expect to recover in an ordinary infringement suit.

[Eric L]

Hi, I also am not an expert. So I went to the internet, I googled the act and went to web sites of professional organizations that represent photographers and artists, I also went to web sites that discuss photography (my interest) professional and amateur.

The vast majority I have found are opposed to this act for substantial reasons a few of which are in the letter posted above. but I encourage others to look on the net take an hour or two and form their own opinions. It is well worth the time for this very important far reaching legislation.


TommyO thanks for your input. Did You ask the copyright attorney how much it would cost to go to court only to recover usage fees?
Also it is my understanding that there is something called "fair use" in the current copyright law which already allows use for the public good.

I believe in private property and that as a creator I own what I created and only I should be able to determine it use.



Here are two quotes from Nick Anderson <http://blogs.chron.com/nickanderson/archives/2008/05/orphan_works.html> Please check out his cartoon and entire comments.

1. "And written from the artist's perspective: "Why does this matter to me?

• Creative control and ownership: No one can use or change my work without my permission.
• Value: In the marketplace my ability to sell exclusive rights to a client triples the value of my work.

The Orphan Works Act would end that exclusive right because

• It would let anyone who can't find me (or who removes my name from my work and says he can't) to infringe my work.
• Since infringements can occur anytime, anywhere in the world,
• My work could be stolen countless times, but I might never find out about it.
• That means that under this bill, I would never again be able to assure a client that my work hasn't been - or won't be - infringed.
• Therefore I would never again be able to guarantee a client an exclusive right to license any of my work.
• This means my entire inventory - my life's work - would be devalued by at least 2/3 its potential worth from the moment this bill takes effect.""

2. " I support the narrow goal of making truly orphaned works (that is, ones by deceased authors) available for use by museums and archivists. But proposed legislation is written so broadly that it will almost certainly unleash a torrent of mischief by unscrupulous infringers, with little to fear in the way of legal consequences."

[Kraellin]

certainly an interesting topic, but my main concern here at the moment is, nobody is posting any links to the actual bill in question. generally, these bills are made available to view somewhere. so, who has the link to the source bill?

[0lBaldy]

Originally Posted by Kraellin

certainly an interesting topic, but my main concern here at the moment is, nobody is posting any links to the actual bill in question. generally, these bills are made available to view somewhere. so, who has the link to the source bill?

This is what I found:

For your edification sir..

Senate version: Here (it is buried in there somewhere)

House bill: Here

[downtrodden]

Can't read original. I'll research.