 |
|
The Controversial
|
"The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years. It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster." - Attorney Steve Winogradsky, past President of the California Copyright Conference and the Association of Independent Music Publishers (AIMP) |
THERE IS A GREAT DEAL OF DISCUSSION on the Web about the new Orphan Works bills, specifically H.R.5889, The Orphan Works Act of 2008, and S.2913, The Shawn Bentley Orphan Works Act of 2008.
I was first alerted to this problem when someone linked me to Mark Simon’s mad-as-hell article, "Mind Your Own Business: You Will Loss All the Rights to Your Own Art." Simon, an award-winning animation producer/director who speaks around the world on subjects about art, animation and TV production, has presented a very clear explanation of how the copyrights of EVERY creative business person are at risk if either of the above bills become law.
Simon discusses the problem related to multiple private electronic databases that people can search to see if a work of art or an image or photo has been registered. "If the Orphan Works legislation passes," he explains, "you and I and all creatives will lose virtually all the rights to not only our future work but to everything we’ve created over the past 34 years unless we register it with the new, untested and privately run (by the friends and cronies of the U.S. government) registries. Even then, there is no guarantee that someone wishing to steal your personal creations won't successfully call your work an orphan work, and then legally use it for free. In short, if Congress passes this law, YOU WILL LOSE THE RIGHT TO MAKE MONEY FROM YOUR OWN CREATIONS!"
These new registries suggest to me that we will no longer have protection from the moment a work is created and published, and that PAID registration with the Copyright Office will now be mandatory if we are to have any hope of protecting our work. Yes, we’ve always known that we couldn't SUE anyone for copyright infringement if we didn't register the work with the Copyright Office, but, in the past, would-be copyright violators didn't have an easy way to find out if a work had actually BEEN registered, so our copyright notice protected a lot of unregistered work as a result.
Now, however, if the Orphan Works bill become law, every would-be copyright violator will only have to search any two databases on the Internet (a so-called "diligent search" not necessarily begun in the Copyright Office), and if they don’t find the work, they can grab it and profit from it. And if the copyright holder actually is able to learn about this infringement and sues, the violator's liability will be extremely limited—meaning that copyright infringers will have so little to lose that they may steal with impunity, figuring they'll take whatever profits they can, as long as they can.
You don't even have to be selling your creative work to be a loser here. For example, if I want to protect the pictures of my photogenic cat or any other photo or pictures of my own artwork published on my website, I'd have to pay to register EACH individual photo to prevent someone from lifting it and using it on a notecard, calendar, or whatever. Just including my usual copyright notice on a Web page would have no effect at all in deterring someone from taking any good photo or other original image from my site, YOUR site, or from any other site on the Web where you have stored/shared your private pictures.
Of course, my little cat pictures are nothing compared to the volume of work an artist or illustrator puts out. And think of all the works already SOLD with a copyright notice. Artists have always figured that would be enough, but the proposed change in the copyright law suggests that if someone bought a piece of art ten or twenty years ago from an artist they can no longer locate, even if the art bears a copyright notice, all the would-be infringer has to do is go to any TWO of the new electronic databases and do a "diligent search." If they can't locate the artist, or the name of that work (if it even HAS a name) in TWO databases, they have the green light to use that artwork for their own profit.
Click here to read my additional thoughts on the Orphan Works bill, as expressed in the e-mail message I sent to my state’s senators. Excerpts from their replies are also included.
I've been following the efforts of Illustrators' Partnership of America, an organization that has opposed both bills and is now running an aggressive e-mail/PR campaign to inform individuals and the public at large about what’s wrong with these bills.
As of July 14, this organization reported that more than 60 organizations, numbering over 250,000 creators, are united in opposing this bill in its current form, and that illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. (Click the above link to quickly check to see if any organization to which you belong is currently opposing these bills.)
This organization has made it EXTREMELY easy for every individual to quickly communicate with their members of Congress by offering a number of letter templates especially designed for one's particular situation. Each template message contains a section in the middle where you can describe your personal situation and how the Orphan Works bill would harm your business. When you fill out your address, your members of Congress will be automatically identified.
Write Congress and fight for your copyrights (Two minutes is all it takes)
Sign the Petition: A Million People Against the Orphan Works Bill
To follow current Orphan Works developments, go to the Illustrators' Partnership Orphan Works blog. To receive email updates from this organization, email illustratorspartnership[at] cnymail.com. Put "Add Name" in the subject line, and provide your name and the email address you want used in the message area.
Click for Part II of this article
