Are You Worried About the "Orphaned Works" Copyright Hype?

I read your comments about the pending Orphan Works bills in Congress with alarm.

Contrary to Bill Frazier's remarks, everything I have heard and read about these bills means that all creative professionals absolutely need to be concerned about them.

Why? Below, I've pasted a very lengthy explanation from Joanne Fink of Lakeside Design, a member of the Graphic Artists Guild and prominent participant in the greeting card industry:
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1. It basically prevents artists from protecting their work, and allows
anyone to use a design without the copyright holder's permission.

Under current law, you receive basic copyright protection even if you don't
register your work. Under Orphan Works law your work could be declared an
orphan even if you have registered it. This is significant because the
Congress, in enacting the Copyright Act of 1976, provided that copyright
exists in the creation of any work that is copyrightable subject matter,
regardless of whether or not the owner has performed any legal formalities,
such as registration, or copyright notices, or taken any steps to protect or defend the copyright. Since 1978 (when it was enacted) many creators have
relied upon the Copyright Act of 1976, and employed business practices based
upon the protections it offered. The proposed Orphan Works Act of 2008 would
have the effect of depriving certain creators of the ability to enforce
their copyrights because they did not take steps that the Copyright Act of
1976 did not require them to take.

2. It requires artists to register work with a digital data base system
that does not yet exist.

The proposed legislation is predicated on the establishment of private,
profit making registries that would establish databases of digital versions
of artworks and provide a place for infringers to try to locate the artist.
It places no limit on the number of these registries or the prices they
would charge. The burden of paying for digitization and depositing the
digitized copy with the private registry would fall entirely on the artist,
and even if an image is contained in the registry, as long as the infringer
"looks" without finding it, the infringement is allowed. There are no
restrictions on the fees that may be charged artists for "registering" their
work with a database, no liability imposed for the failure of a database to
find an image registered in that database when it is searched, and no
requirement that all available databases be searched, thus potentially
requiring multiple registrations (and multiple registration fees).

3. It eliminates statutory damages, which currently are what keeps
deliberate infringement from taking place.

Current law almost certainly deters rampant infringement because the present
remedies - damages of up to $150,000 per infringing article-- make
infringement risky. By "limiting remedies," the Orphan Works amendment will effectively create a no-fault license to infringe.

4. It allows for someone other than the copyright holder to modify the design. It also allows for an infringer to create-and copyright-a derivative
work from the original design.

Under current law, the right to create a derivative work is one of an artist's exclusive rights. Section103(a) says a user can't copyright a derivative image that he's infringed. "Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

This seems quite explicit: If the entirety of an infringed work can be
included in a derivative use, then the copyright of the derivative will
amount to a copyright of the original. This would be a de facto capture of
new exclusive rights by the infringer. But this bill allows infringers to
make and copyright derivatives- even if the copyright holder to the original
work objects.

5. It changes 1976 U.S. Copyright Act (enacted in 1978), and sets a bad
precedent for international copyright law by going against the Berne
convention.

Can legal scholars justify exposing to infringement millions of legitimate
works created in compliance with existing law on the grounds that some of
the images might be orphans? A copyright owner is granted exclusive rights
of copyright, including rights of reproduction, distribution, the right to
make derivative works-and the right to refuse permission for others to
utilize their work.

Worse, the legislation is scheduled to take effect on the EARLIER of: "the
date on which the Copyright Office certifies under section 3 at least 2
separate and independent searchable, comprehensive, electronic databases,
that allow for searches of copyrighted works that are pictorial, graphic and
sculptural works, and are available to the public through the Internet; or
the January 1st, 2011 or January 1, 2013 dates listed by the respective
Senate and House bills. This means that if there is no visually searchable
database operable before the date(s) listed, the legislation goes into
effect anyway, which is totally unacceptable.

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And there is much more information about the bills here: www.illustratorspartnership.org.

Perhaps these bills more frightening to those artists such as myself who also do commercial work (i.e., illustration and design). If this legislation passes, why would any corporation hire me to create an image for them if they can legally find and use an "orphan work" that's just as good, for free?

Jennifer L. Wambach
Jennifer Wambach Illustration & Design

I have to agree with Nancy and Jennifer with their concerns. While things do escalate to frightening proportions through emails and individual interpretations, I do not think it is something to ignore or dismiss. There are groups of respected artists and professionals putting a lot of effort and money into making sure artists are protected and informed and that alone should be enough for us all to take notice and not be told we are being alarmists. I think it is important to hear both sides of the story, explained in language that is easily understood and form our opinions rationally and not from a place of fear or dismissal. I truly think that if there was not a huge window for misinterpretation and loophole in this bill it would not be raising such a red flag.

Here is response from Senator Patrick Leahy to me. It seems like a helpful bill on deeper review:



Dear Ms. Barr:



Thank you for contacting me about orphan works. I appreciate hearing from you, and I am sorry to hear that we disagree on this matter.



On April 24, 2008, Senator Hatch and I introduced the Shawn Bentley Orphan Works Act of 2008, S. 2913. This bill would allow the use of orphan works, but only if the users first conduct and document a diligent search for any owners, from whom they could seek licenses to use the works, but are unable to locate those copyright owners. If a copyright owner later emerges, the user must pay reasonable compensation to the owner and is shielded only from full statutory damages.



The Shawn Bentley Orphan Works Act does not dramatically restructure copyright law - it simply provides for a limitation on damages in discrete, limited circumstances in which, among other things, the owner is not locatable. It does not provide for a transfer of copyright ownership or rights. The legislation also does not require artists to register their works; it merely provides extra protection for visual works by requiring the Register of Copyrights to certify that there exist databases of visual art that have the capability to search images both by text and by image.



Congress must act carefully to ensure that legislation does not harm the creators who hold copyrights and who bring so much value to our culture and our economy. At the same time, I would like to see the chance for social and cultural enrichment by enabling use of these orphan works by the public. At its core, the Shawn Bentley Orphan Works Act seeks to unite users and copyright owners, and it seeks to ensure that copyright owners are compensated for the use of their works. It does not create any orphans, and it does not create a license to infringe.



Again, thank you for contacting me. Please keep in touch.



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