Copyright: Orphan Works Act Update

I’ve posted information on the Orphan Works Act before. This time, I am posting something that Art Calendar has because it is complete already. I copied it verbatim from Art Calendar, rather than simply provide a link, so you wouldn’t have to click again. And because I think it’s important.

Here is the article on the Orphan Works Act Update:

UPDATE: As of May 28, creative professionals across the country have joined together to travel to Washington DC June 3, 4 and 5 to share their concerns about the Orphan Works Act with legislators. You can find more information about this and other ways to help at the new Orphan Works Opposition Headquarters site, .

On April 24, Senators Pat Leahy (D-VT) and Orrin Hatch (R-UT) and Representatives Howard Berman (D-CA), John Conyers (D-MI) and Lamar Smith (R-TX) introduced legislation (S.2913, HR 5889), which is now being referred to as the Shawn Bentley Orphan Works Act of 2008. It is virtually the same bill that was presented in 2006, and subsequently rejected by Congress. But now, they are trying again.

If passed, the Act would radically alter copyright laws, taking away the automatic copyright now guaranteed to artists of all types who create any type of work. Right now, under U.S. law, you are automatically guaranteed copyright on everything you create, from the sketches in your sketchpad to your best paintings and sculptures. Under the Orphan Works Act, every creator will be required to register everything he or she creates in a private registry system, requiring a fee of course, and supposedly to make it easier for the “public” to search for works and contact the creators if they want to use the works for some purpose. Everything created in the last 30 years will need to be registered through this as-yet nonexistent system, including those works already registered via additional fees with the copyright office. If they aren’t, and some member of the public makes “due diligence” to find the creator of a work and can’t find him or her, that member of the public is entitled to use the work without any limitations, and artists will have no legal recourse. That means every piece of work you have out there, especially online, would be open season for use by major publishing houses and businesses (Microsoft — who owns one of the largest online image databases — and Google have already voiced support for the bill and indicated they will use thousands of images) and everyone in between.

Proponents of the bill say it will assist the public in identifying and contacting creators of works and going through the proper channels to contact them to ask for permission. While we understand the need for an organized system of search, there are MAJOR FLAWS in the proposed bill that need to be addressed before any such proposal should take place. Here are a few points:
∑ Under this law, you would need to register every piece of work you create, including those works that you have already registered with the Copyright Office officially, in some system that does not exist and would likely require you to pay to do so. The time and cost to do this is going to be prohibitive for visual artists.
∑ While this is meant to apply to all types of creative works, including music and literary, visual artists will be impacted the most because of the sheer volume of work we create, making it very expensive to register everything you have ever created or will create.
∑ For the visual arts, there would still be little protection for you and your work, even if it is registered, because search tools would rely on names of artists or titles of work, and not image recognition tools, which are still in their infancy of development.
∑ Under this law, if you register your work, you would have to respond to EVERY inquiry sent to you for use of the work. So in other words, if you have a work out there in a registry system, and some person contacts you and says he wants to use your work for free on his Web site or in his new catalog, you would need to take the time to officially respond to every inquiry within a specified time limit, letting him know if you do not want to have him publish your work for free. This will take a lot of time and effort that we, as professional artists, do not have.

Last week, the House Judiciary Committee unanimously approved the bill, and yesterday, May 15, the Senate Judiciary Committee did as well. This means the bill will be presented to Congress, likely before the end of May.

We need you to write to your representatives ASAP and let them know that you do NOT want this bill to be expedited, as it is now. Tell them we need a better solution, or tell them you don’t want it at all: Just be sure to tell them something soon. Click the links below to get more information on the bill, including a video that gives you a great overview of the artists’ concerns:

Click below for several options of pre-written and editable letters that you can fill out, and that will automatically identify and send it to your representatives when you enter your address:

4 thoughts on “Copyright: Orphan Works Act Update

  1. This proposed legislation raises a number of questions:

    1) The standard Washington question: Who stands to make the money if this bill is passed? As in, who’s been lobbying for it, and why?

    2) Would it be a funded mandate? “Cuz designing, testing, and maintaining that database ain’t gonna be cheap.

    3) Would it be enforceable in practice? Who would enforce it? Is appropriate law-enforcement authority already in place or is it coming later (or not at all)?

    4) What does the Copyright Office think about this? Do they support it, or are they as surprised as everyone else that they are about to get this thing dropped in their lap?

    Things to ponder…

  2. I think this proposed bill is a good idea. Copyrights and patents are simply licenses for an innovator to profit from something new for a period of time, after which the work is becomes available to society to stimulate further innovation. Copyright got overdone in the 20th century and extended much too far, and this is an attempt to redress those problems.

    It’s not at all clear that registration would be expensive; a public registry can be automated pretty easily.

    Here’s a podcast with a lawyer and a graphic artist talking about the bill:
    Here’s the text of all the US copyright acts since 1909:
    Here’s some information about the idea of orphan works — this is one of the areas the bill is trying to address; the notion that currently a huge amount of material is copyrighted and unusable in any form because nobody knows who owns the copyrights, so no permissions can be obtained.
    Here’s an overview from Public Knowledge, a public interest group in Washington DC:

    The bill is certainly not perfect; it does seem to offer large organizations more advantages than might be necessary. But I think it’s a step in the right direction. At least read the bill before deciding.

  3. How about the copyrights of people who already died and how about the intellectual property of people who live in the rest of the world?
    Copyrights are all arranged through international treaties, so these cannot be just disowned.

    Seems to me that mostly companies like Google and Microsoft benefit from all this, but then what could be in it for governements? It makes one wonder.

  4. This Act sounds like The THEFT Of A Century, supported by law!
    Should this be a prize to pay for world wide digital life? I don’t think so.

    —-Exactly the same reaction I had. The first time I heard about it, I thought it was some sort of urban legend, or a joke. No, no. It’s the real deal. -Q

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