Update Orphan Works Act

[Tracy Cornett]

FROM THE ILLUSTRATORS’ PARTNERSHIP


Backers of the Orphan Works bill are circulating their Talking Points:




“Neither the House nor the Senate drafts of the bill contain the word “registries,” [they write] but rather they require users to search non-governmental databases of copyrighted works. The purpose of any database is not meant to take the place of copyright registration, but to have a way to search for visual images. Any participation in such a database would be voluntary.”




But this doesn’t mean what it appears to say. Take it point by point:


Talking Point #1: “Neither the House nor the Senate drafts of the bill contain the word ‘registries.’ ”
Response: Correct. They contain the word “databases,” a synonym:


Registry: register: an official written record of names or events or transactions
http://wordnet.princeton.edu/perl/webwn


Database: A database is a structured collection of records or data
http://en.wikipedia.org/wiki/Database




Q: Why a synonym?
A: Because international copyright law forbids member countries to impose registries as a condition of protecting copyrights: Berne/Article 5(2) ”The enjoyment and the exercise of these rights shall not be subject to any formality.” http://www.law.cornell.edu/treaties/berne/5.html


In other words, if they used the word “registries” in the bills, it would be a red flag to other countries that the US is flirting with non-compliance with international treaties.




Talking Point #2: “...rather they [the bills] require users to search non-governmental databases of copyrighted works.”
Response: Non-governmental databases” means databases maintained in the private sector.
For users to find your work in these commercial databases, your work would first have to be in the database.
Work not in the database would be orphaned.


Talking Point #3: “Any participation in such a database would be voluntary.”
Response: Congress cannot pass a bill making registration mandatory because that would violate Berne/Article 5(2).
And that would state explicitly to other countries that the US no longer intends to honor its international agreements.
There are red flags all over these talking points.


Summing up: The Orphan Work bills would mandate the creation of registries by commercial interests.
You would not be legally forced to place your work with these for-profit registries.
But failure to do so would orphan your work.


The deceptive talking points accompanying this bill are another red flag.


— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership


Take Action/ Write Congress http://capwiz.com/illustratorspartnership/home/


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[sheila wolk]

ok im a bit confused..i put in a group copyright for 50 paintings and it cost me $45.00 total..so how is the Library of Congress making such a huge profit off of people who know how to submit for copyrights?

They had the total charge at $30.00 for about 20 years and just raised it to 45,,but that's a modest raise for all the work and filing they have to do, and maitanance,,and now they even have an 'oline' filing if you wish to do that. I find it very easy.

If people want the Library of Congree and the abiding countries in the treaty to not do this anymore,,then all is lost as far as any protection when you get ripped off. The Library of Congress wrote in their 233 pages of the answer to the Orphan Bill that they will only concider things as orphans if in time no one in heritage of the willed copyrights exist any longer,,this would be good for historians and libraries and museums to show off the works in future,,say over 200 years from now..so I'm sitting o.k. for that bend in the road,,but they also meantioned in the end of their answer to the Orphan Bill that was submitted ( in their website),,that they have no intentions of leaving artists without their copyright protections.

So what's the problem you all are having..can someone explain to me in simple terms what the big scare is all about?

Thanks
Sheila

[Tracy Cornett]

The orphan works act wouldn't literally cancel your copyright out and make your art a true legal orphan work, meaning you can't do anything. The problem is that it would in many legal ways strip away the benefits of having a legal copyright by giving protection to the person that stole your work. Right now if you aren't registered you still have a copyright, but if its stolen you are very limited in the money you are allowed to get from the person using your art without permission. The legal registration gives you that extra punch that allows you to go after serious damages, and this promise of serious damages is what would allow a small time artist to find a lawyer will to represent them without upfront payment. Because they know the payout could be well worth it. But under the new Orphan works act (if it passed), a person can claim ignorance. If they say that they looked and could not find the artist (which is very likely) they can claim that they thought the work was orphaned (even though its not). What that means is that while you can still make them stop using it, you can't really go after them for real damages. Since they can claim ignorance under the law you can only go after what they can afford, and in some ways they determine what they can afford. Which means you can't really seek high damages, which means you aren't going to be able to find a lawyer to represent you unless you find the money to pay them upfront. It basically gives all those people on line the ability to take your art, use it for whatever they want to use it for and avoid any repercussions other than someone saying "naughty boy" when they are caught. People should have to find the artist and compensate them, or should have to go find an artist and pay for what they need instead of assuming that anythign they find online is free game. Especially when you work will end up online whether or not you post it. They could also use your family photos for whatever they want and still claim they didn't know what they were doing was wrong because they did a quick search and didnt' find out they belonged to you. Does that make sense?

[sheila wolk]

Thank you Tracy,,you were extreemly clear on this,,, i really appreciate your time in writing back!

,so here's my question..

in this day and age of puters,,why would any artist NOT get copyrights on their works of art? It's made simply enough by our government for us to protect our works. I can see your point about the old photos,,but in years to come when we are gone and the heirs to the copyrights have lived them out and have died also, and museums have most of the successful artists works tucked away safely,,,,,for the works that never made it,who will really care what it's being used for , even in this new "altered art' i see floating around?? BUT I still see your point when it comes to those new art forms...so its a dilema...would i really go to court on an old photo of my dad if i had a copyright on him/ of an old photo? I think not....costs way too much money.
I am not a defeatest,,I appreciate the Library of Congress and am always in there reading and staying up to date..but there are some things that are totally impossible to control in life..wouldn't you say?

Now the age of anyone making something and just signing it and seeing it as copyrighted is over,,sorry not good enough,,if you are an artist, with potential of succcess, then know your business of art and protect the art,,otherwise the government can't sit back and let all run amuck in the court systems without some show of proof....
judges love to see everything in writing.

I would love to hear your response t o my dilema question please, you seem most informed :-)

Thanks,
Sheila

[Tracy Cornett]

I'm not really sure why artists wouldn't bother to officially copyright their work, and even now if they don't there is very little court actions they can take against theft. Mailing copies to yourself and not opening them no longer works very well. You might be able to get them to stop using your art but that's about all. So legally copyrighting is very important even now, as the law stands, probably for some of the reasons you mentioned. I agree an artist that doesn't do this is being naive, which is why I post information on my websites forum to make it easy for newbies to figure out how to start getting legal copyrights. But the problem is that this new law could strip you of most of the usefulness of being legally and officially copyrighted. It's important to remember this law is in effect an amendment to current copyright law, which means it will ammend it, change it to some degree. What's true now, won't necessarily be true in the future. Your current protections under copyright law can be weakened.
maybe this will help. Here are two examples, one with current law, one if this bill were to pass, at least my understanding of it.

Ex. 1 (current): I register my artwork with the copyright office and place my artwork online. Someone downloads my artwork and uses it on the cover of their book, without contacting me. I find out they have done this and contact a lawyer, who, due to my official copyright is happy to take the case for me, sue the jerk who stole my art and used it for profit and take a percentage of my award because I'm a poor artist and I can't afford a lawyer, so I don't have to pay him up front. The bad guy gets punished and I'm able to get paid for the unlicensed use of my work. The big payout also helps discourage people from takign the chance and stealing someones art.

Now Example 2. If the Orphan Works Act became law. I register my work with the copyright office. I don't place my work online because I'm worried it might get stolen. Someone else scans one of my images because they love it so much and place it online. Someone else comes along and sees that work and puts it on the book cover. Because its a print someone scanned there's no watermark so they just do a couple of quick searches to cover their butts, but they don't really try to find me, since they don't even know who I am or what my name is. They slap that image on a book and start selling it. I somehow find out, maybe I find the book in a store. I try to get a lawyer. The lawyer won't represent me because the guy who stole my art says he tried to find me, and due to the new provisions of the Orphan Works Act his "good faith" attempt to find me was enough for him to be able to claim he didn't "steal it". And he isn't rich so he says he has no money to give me, and under the new provisions I can't seek big damages because can claim he "thought" my work was orphaned. So without the promise of big money I can't find a lawyer to take the case and I can't get any real justice for the theft, or money for the use of my art. So what's to discourge the wide spread theft of art. This is only one way your art can be more easily stolen if the orphan works act became law.

The real problem stems from the fact that it doesn't identify an orphaned work as a work where the artist has given up their copyright voluntarily, and because of this it creates a legal loophole that allows people to claim almost anything is orphaned. To try to fix this they have proposed that databases be maintained, not by the government, not by the copyright office (which would probably take away a lot of the objections) but by SEVERAL private companies. Then people could search these databases to find out if a work is copyrighted. Because these are private companies and not the copyright office they would most likely be for profit. And the bill doesn't even outline who or what they'd be. The companies might charge you per image, and even at $5 an image that would be a whole lot if you do a lot of art per year. So on top of registering with the copyright office (which thankfully lets you do groups of work) you'd also have to register with some privately created database that could charge who knows what, probably per image. The bill says this would be voluntary, registering with the databases. But if you didn't register in these seperate databases it would give the persosn who steals your art an out by saying they searched the database and didn't find your art so they thought it was orphaned. Not to mention there is no way of knowing how these databases would run, or even if they'd ever really happen, since the law doesn't adequately describe or provide for them. And if they didn't get created then it would be even easier for someone to say they tried to find you and didn't so they thought the work was orphaned.

It all boils down to the fact that the law was written by people who aren't artists, dont' represent artists, and don't have any concept of what it's really like with visual arts and the internet these days, and the rampant theft that is already happening.

This site is a great source of information. The group is big enough that they have lawyers that can go through the bill very carefully and help them interpret what it means and the legal consequences it would have versus the current law. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

This in particular is a very informative read.
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00264

Don't necessarily trust the copyright office to be a good source of information about this law and what it might do. As a government agency they will need to operate very clearly and strictly according to the law that is, not the law that may be. Plus since most of them are not going to have legal expertise and be overworked like most government employees they might not realize what this law entails (remember its only in committe at this point, not even in front of congress, but now is when its easiest to kill a bill). So while they may have no desire or plans to mess with the way things are done now that doesn't mean that someone in congress can't write a piece of legislation, like this bill, which will change all that and rob you of some of the rights you used to have.

The orphan works act will also make it much easier for people to create derivatives of your art without consequences. And as a photographer this is especially troublesome to me because it not only takes away my rights, it infringes upon my models who signed over their image rights to me, but not to some random dude who steals my art and does something else with their image. And the theft of my art could happen tomorrow if this passed, that's the problem. You are right about the future. Under current law our copyrights only extend so long after death, though as long as walt disney stays dead his company will keep lobbying to extend how long that is to keep mickey mouse copyrighted ;). But in time all work will pass into public domain and anyone can do whatever they want with it and to it. But our government shouldn't make it easier for this to happen while we are still alive and trying to live of our artwork. And that's what this law would do.

Hope my response lives up to your expectations =).