Orphan Works Act of 2008

EDIT- Having read the actual bills on release, I have a number of corrections and futher information in accordance to the actual bill’s language and content. I’d recommend reading this more recent blog post to separate the facts from the FUD.

Tuesday the Illustrator’s Partnership received draft copies of the 2008 version of the Orphan Works bill I’ve discussed so often here. The bill itself was released yesterday. I’ve read and blogged a lot about this issue. Here’s a link to the articles I’ve done on this horrifically misguided piece of legislation.

A week or two ago I found this sarcastic but reasonably well written and equally misguided “Six Misconceptions about Orphaned Works” post that tries to debunk the proposed Orphan Works legislation as not being the monstrosity creators think it is. The author is incredibly naive in that she believes the Orphan Works bill won’t change US Copyrights in a fundamental way, and she cites current copyright law in her debunking attempts when those laws will no longer apply in several real ways if the Orphan Works bill becomes law. She sees it as a way to be able to archive and possibly preserve works that would otherwise be lost in time because they are truly “orphaned”, like Grandma’s family photos. That is of course one of the simple reasons behind the legislation, but nothing is simple and this proposed law is like giving someone the right to scratch an itch they have but they need to use a sledgehammer to do it.

Let’s debunk her “misconceptions”. Please note I did not copy her entire text here, so please visit the original post for the entirety of her arguments. By the way, in this context my use of her copyrighted text is considered “fair use”:

Myth #1: “There’s legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!”

She says: Actually, no, there isn’t. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet.

That was true until yesterday, but what did that have to do with anything? Bills are lobbied for and votes assessed long before they are introduced officially. It’s over late to lock the barn door after the horses have run off. Previously proposed bills HAVE been introduced and were not passed, and there is no reason to believe there is any major changes to the new bill’s language. Those who may be lobbying for the Orphan Works act weren’t waiting for it to be introduced to start working on getting votes for it. Why would we who are going to be seriously affected by it wait? Anyway it’s out now, so it’s a moot point.

Myth #2. “If I want the copyright on my art to be recognized, I’ll have to pay to register each piece!”

She says: That isn’t the case now, and it isn’t likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists “from the time the work is created in fixed form” — in other words, the instant I hit “post” on the form I’m typing this blog post in, the instant you step away from the canvas, the instant you hit “save” in Photoshop, that work is “in fixed form” and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

Huh? Nobody is arguing that the work itself isn’t copyrighted just like it as before. It’s how that copyright is protected that is at issue here. The ongoing discussion is how to create a way that someone wanting to find the creator of a piece of artwork be able to do so under a strictly defined guideline. The 2006 Orphan Works Report specifically talks about the establishment of a registry (page 106), and how they believe a private registry (i.e. a company that does it as a business) is the best way to go.

Most of her “arguments” against the perceived misconceptions of the Orphan Works bill are predicated on the fact that it will not change existing copyrights as they are applied to creative works. She repeatedly restates this. She’s right, it only changes how those copyrights are protected. Under Orphan Works logic, even though it’s still illegal to steal a car if you can show you didn’t know who owned it and made a “reasonably diligent search” to find the owner but couldn’t, then it’s okay if you drove it around for a weekend or two… but I digress.

The entire fiasco of the Orphan Works idea hinges on the vague description of a “reasonably diligent search” that needs to be performed by a party wanting use a creative property they have found somewhere that they do not have an immediate way of finding the creator. What is a “reasonably diligent search”? A Google search for “guy who did this cool caricature of Bono?” Discussion of creating a registry for creative works has been a part of this whole thing since day one. The logistics alone of individually registering each piece of art I’ve ever done is staggering, let alone my having to possibly pay a fee. It’s a pipe dream to think that an Orphan Works bill can exist without a clear definition of what constitutes a “reasonably diligent search”. She’s right in that it’s not what the proposers of the Orphan Works bill want… they want anyone to be able to use anything they find without paying and place the onus on the creator to prove they have infringed on them WITHOUT making some effort to find them.

According to the Illustrator’s Partnership’s examination of the actual bill:

The language in the draft confirms our warnings. If this bill passes, you’ll be forced to clear all your secondary licensing rights through at least two government certified databases ?¬¢‚Äö?ᬮ” or risk orphaning your art.

Myth #3: “If I don’t pay to register my copyright, anyone in the entire world will be able to use it for free!”

She says: Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries.

Uh, actually YES. That’s the very definition of the Orphan Works bill. Anyone in the entire world CAN use your copyrighted work… it just needs to be under the right circumstances. Technically the work itself is copyrighted under the Berne Convention, but in reality it’s only copyrighted in so far as the person infringing it cannot show they performed the dreaded “reasonably diligent search”. Saying it’s still protected but giving someone an easy out to get around that protection is the same thing as it not being protected. It’s your copyright, no question or argument about that, but anyone demonstrating they couldn’t find you can use it anyway and never pay you a dime, even if you caught them doing it.

EDIT- Now that the actual bill is out and I’ve read through it, it would appear that even if the person proves they did a “reasonably diligent search” it doesn’t excuse them from having to pay something for the use of a copyright piece of art if they got busted using it. In fact the entire bill is centered around how much a copyright holder can get from someone using their work without permission IF they also show they acted in good faith and thought it was an orphaned work. The bill itself is entitled: “A BILL to provide a limitation on judicial remedies in copyright infringement cases involving orphan works.” It limits what the copyright holder can get to “REASONABLE COMPENSATION.?¬¢‚Äö?ᬮ”The term ‘reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.”

Myth #4. “Someone else could register the copyright on my work, and use that against me!”

She says: Nope. Under US copyright law, only the author of a work, a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author, the owner of exclusive rights (i.e., someone to whom you have transferred copyright under a “work for hire” agreement), or the duly authorized agent of one of the above may file for copyright registration.

This one I agree with. I think someone could try and copyright something they did not create but they would not get away with it if caught. It would be fairly easy to prove, at least in a visual case, that some piece of art was mine and not someone else’s. However I have never seen anyone use this as an argument against the Orphan Works act, so I have no idea where she gets this. There are plenty of legitimate issues at stake.

Myth #5. “If I don’t track down people who are illegally using my copyrighted works, I’m SOL!”

She says: Honestly? This is the state of things already. The Copyright Office does not employ an elite squad of cybercops searching night and day for infringing uses of copyrighted works. They don’t have that kind of money. Identifying infringing uses, sending the infringer a takedown notice, and bringing legal action if the infringer refuses to stop infringing are already your problems. They will continue to be your problems for the foreseeable future.

Yes, right now there are many examples of people illegally using copyrighted works all over the world and it’s up to the creator to somehow find them and do something about it. Millions of infringements are going on right now, and most of them will never be discovered by the copyright holder. It’s a big, imperfect world. What can we do about it? I KNOW! Let’s make it legal for them to do it, and then it won’t be illegal!

Good thinking there.

Nobody is proposing the creation or the expectation of someone else policing infringement of copyright. The point is that under current copyright law, it is ALWAYS illegal to use creative works to which you do not own the copyright without permission of the copyright holder. Under the Orphan Works act, it’s only illegal IF they are caught AND the copyright holder sues AND the courts find that there was no “reasonably diligent search” conducted. Unless all three of those things happen then the use is perfectly legal. That last one is the key. Again, what is a “reasonably diligent search”? Nobody knows.

EDIT- Again the current bill does not make it legal to use a work without the permission of the copyright holder, but it does limit what the copyright holder can get if an infringement is caught.

Under current copyright law, if you have not registered your work with the US copyright office (something you can do in bulk for very little money, and something that is NOT a searchable registry) you are only entitled to a reasonable fee from the infringer. If you HAVE registered your work, you can recover damages and attorney’s fees as well. All you need to do in either case is prove you are the copyright holder… very easy to do. The infringer is NOT the copyright holder, which they of course knew full well, ergo you win. Under the Orphan Works act, you also have to hope that the courts decide the infringer DID NOT make a “reasonably diligent search” to find you if you want to also collect damages. Clearly under Berne and Copyright law you are the copyright holder, yet you may not be entitled to be compensated for the infringement of your copyright even so. DOES ANYONE NOT SEE SOMETHING SERIOUSLY WRONG WITH THAT!!!!????

Myth #6. “Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!”

She says: This is quite possibly the most ludicrous claim that’s being bandied about. According to the Copyright Office, public display of a work does not even constitute publication — you have to sell copies, or tell other people they can distribute copies, in order for the work to be considered “published”.

I don’t know what she means by that, considering she also said this earlier:

In current copyright law, copyright protection exists “from the time the work is created in fixed form” — in other words, the instant I hit “post” on the form I’m typing this blog post in, the instant you step away from the canvas, the instant you hit “save” in Photoshop, that work is “in fixed form” and protected by copyright.

She goes on to once again beat a dead horse in saying that the Orphan Works act doesn’t remove anyone’s copyrights. They exist automatically as they always have. That’s right! All it does is give someone a free pass to circumvent your copyright based on someone else’s decision of what a “reasonably diligent search” is, and enable them to use it for no more than they would have possibly paid to begin with. It’s simple: Without the Orphan Works Act you have absolute control and protection over your copyright. With it, you MIGHT have control and protection. Big difference.

Here’s the crux: Why wouldn’t any legitimate publisher just role the dice and use some image found on the internet for free as opposed to hiring an illustrator to do they image for them? The worst that could happen is they have to pay for it IF they get caught, and then only what they would have paid for it in the first place. They only pay damages or get otherwise financially punished IF they cannot prove to a court they made a “reasonably diligent search”. Let’s set aside the works that are not truly orphaned but just without a credit for the creator to be located. There are millions of truly orphaned work out there where the creator is dead or the work is lost to time… should these be free to use for anybody and be allowed to take the place of the paid creation of new works by creators trying to earn a living? Should the internet become a gigantic source of stock illustration and photography, where the removal of a copyright or credit makes it free for all?

There is no way a logically minded individual can think that the Orphan Works act is a good idea and will help promote the creation of creative works, as it claims. It will seriously damage the livelihood of the very creators they somehow seek to encourage to create. Misguided people like the author of the “Six Misconceptions about Orphaned Works” seem to think it’s more important to be able to make copies of Mom and Dad’s wedding pictures than to protect the ability of creative professionals to make a living.

If you make a living in any way be creating intellectual works i.e. art, illustration, writing, etc., then this proposed legislation is of vital importance to you and your livelihood. Read up on it, and follow the suggestions of the folks at the Illustrator’s Partnership and contact your state representatives. In the meantime, you’ll be seeing all the images on my website begin to be replaced by ones with a giant, ugly copyright and my name watermark on it.