Orphaned Work Legislation
Moderators: Víctor Paredes, Belgarath, slowtiger
Well the article Rasheed mentioned is very convincing as is the copyright offices congressional report byf Marybeth Peters. I feel foolish and think I will stick to drawing instead of rabble rousing. I did send Mrs. Peters a link to the article that started this and ask if you would consider sending a plain language response.
[Lemming over and oouuuuutttttt? SPLAT]
[Lemming over and oouuuuutttttt? SPLAT]
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Now worries Bupaje. Don't forget it isn't your fault. Many many people were caught up in this one. By posting this you helped us find out the truth.
Just remember in the future not to believe everything you read on the internet no matter how "reliable" the source might be.
I have many friends and family that believe EVERYTHING they get in their email box or read in just one place on the internet, and forward it to everyone on their list. I've given up trying to correct them. I use to send them links to hoax sites to check first but they never do.
p.s.
My sister is convinced that Nutrasweet causes every disease known to man from gout to ingrown toenails. She "read it on the internet" so it must be true. I send her to an independent unbiased scientific web site proving her wrong and of course that can't be true because there is a conspiracy to hide the truth. People can be selective about what they want to believe. If you believe something for a long time it is hard to accept proof you may be wrong.
-vern
Just remember in the future not to believe everything you read on the internet no matter how "reliable" the source might be.
I have many friends and family that believe EVERYTHING they get in their email box or read in just one place on the internet, and forward it to everyone on their list. I've given up trying to correct them. I use to send them links to hoax sites to check first but they never do.
p.s.
My sister is convinced that Nutrasweet causes every disease known to man from gout to ingrown toenails. She "read it on the internet" so it must be true. I send her to an independent unbiased scientific web site proving her wrong and of course that can't be true because there is a conspiracy to hide the truth. People can be selective about what they want to believe. If you believe something for a long time it is hard to accept proof you may be wrong.
-vern
With the correct set of circumstances you can probably let people believe anything. As an animator you tap into this property of the human mind.
Reminds my of this episode of Pinky and The Brain. Subliminal messages... to take over the world. Why else?![Very Happy :D](./images/smilies/icon_biggrin.gif)
Reminds my of this episode of Pinky and The Brain. Subliminal messages... to take over the world. Why else?
![Very Happy :D](./images/smilies/icon_biggrin.gif)
I actually tend to be suspicious so I am a bit surprised at myself. Still, I won't discount it all. There were people who belittled the CIA agent who warned of an attack like the 9/11 that eventually took place. There were others that ridiculed experts who warned of the risks that eventually led to the current financial market crisis. There were those who warned that the 'proof' leading to the invasion of Iran was not reliable -and were labeled un-American or cowards who wouldn't act until the mushroom cloud appeared.
You can find many more incidents if you look. Abuses under the Patriot Act. Corporate greed causing implosions in various markets, congress relaxing laws that allowed corporate pirates to plunder pension funds leaving large amounts of people with no money for their retirement. There were voices warning of these things before they happened. Usually people just didn't want to hear it.
I think some of the concerns mentioned are valid enough that we should consider them before signing in blood. There is a danger in swinging completely away from the issue and thinking we've 'solved it' and there is nothing to worry about.
Having said that I'll be more careful. In fact I sent a suggestion to Google this morning regarding a 'fact engine' which would allow users to sort and collate information from around the web, on topics of interest, to allow users to better assess the accuracy of data. I think the idea has merit. Love to see them put it in action.
You can find many more incidents if you look. Abuses under the Patriot Act. Corporate greed causing implosions in various markets, congress relaxing laws that allowed corporate pirates to plunder pension funds leaving large amounts of people with no money for their retirement. There were voices warning of these things before they happened. Usually people just didn't want to hear it.
I think some of the concerns mentioned are valid enough that we should consider them before signing in blood. There is a danger in swinging completely away from the issue and thinking we've 'solved it' and there is nothing to worry about.
Having said that I'll be more careful. In fact I sent a suggestion to Google this morning regarding a 'fact engine' which would allow users to sort and collate information from around the web, on topics of interest, to allow users to better assess the accuracy of data. I think the idea has merit. Love to see them put it in action.
[url=http://burtabreu.animationblogspot.com:2gityfdw]My AnimationBlogSpot[/url:2gityfdw]
Of course, facts can be disputed, otherwise it wouldn't be facts, but dogmas. I'd rather see Google rating the facts as well, how established they are, or how disputed they are.
Of course, facts have nothing to do with popularity, or how many documents are published to support or disprove a particular fact. It all has to do with reasoning and weighing against other known facts.
Of course, facts have nothing to do with popularity, or how many documents are published to support or disprove a particular fact. It all has to do with reasoning and weighing against other known facts.
- synthsin75
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I actually didn't find this to be comforting. The examples she used are of work-for-hire which is already covered as the copyright belonging to the employer. So these types of 'orphaned works' are not really an issue. Any 'family photos' are obviously not going to be used commercially, so they wouldn't even be threatened by copyright litigation.Rasheed wrote:Also check this article, which put things into perspective.
http://maradydd.livejournal.com/374886.html
I still think that this may be a wolf in sheep's clothing here. I mean why would anyone fear being sued from having their parents wedding pictures copied. That's ridiculous.
I'm a pretty sceptical guy. I tend to think that this article is playing on people's hope that our government is actually not that bad. Sorry to break it to ya, but it is (and Santa isn't real either).
Anyway, since I don't see 'family photos' to be in need of this kind of protection, I can only assume that it is a 'reasonable front' for the more unscrupulous loopholes. Of the two opinions, I'd still have to lean toward the 'alarmist'.
Luckily this doesn't effect my livelyhood. So I can take it with a grain of salt.
![Wink :wink:](./images/smilies/icon_wink.gif)
This actually happened. A picture on one of those big stock photo places got sued because they had an image of a wedding and were selling it and never got permission or waivers from the couple.I still think that this may be a wolf in sheep's clothing here. I mean why would anyone fear being sued from having their parents wedding pictures copied. That's ridiculous.
So if the so called bill that doesn't exist yet were "real" then the people involved would have had no recourse.
I honestly absolutely and I am 100% positive there is absolutely nothing to worry about. None of this will happen the way it was described originally.
-vern
And don't forget that if you have enough lawyers and other goons, you often don't need any real legislation, just the idea in people's head that there is such legislation. It is called extortion, based on the fact that lawyers are expensive, and that without a lawyer you're at a disadvantage.
I really chuckled when reading in Accelerando by Charles Stross the RIAA has been taken over by organized crime, because they are best at convincing people to pay up.
I really chuckled when reading in Accelerando by Charles Stross the RIAA has been taken over by organized crime, because they are best at convincing people to pay up.
- synthsin75
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Mmm, seems the stock photo business may need a watchdog. I mean where did they acquire such a photo in the first place? By raiding image hosting sites? Still seems that it could unnecessarily protect the stock photo business.This actually happened. A picture on one of those big stock photo places got sued because they had an image of a wedding and were selling it and never got permission or waivers from the couple
I'm sorry, but I see people using photos put on the Internet left and right for their personal use. The problem is that copyright law has completely gone haywire. People don't understand it, so they even don't try anymore.
The problem many people have is: "If I can load it into my computer, and have it in my possession, why can't I use it as I see fit? If artists don't want their work to be stolen, they shouldn't put it on the Internet to begin with, should they?" The distinction between the right to watch, but not to create derivatives, or to resell, is too far fetched for most people, I think.
If you find a penny on the street, you put it in your pocket and it's yours. Same with things you find on the Internet. And the best thing is, you don't take it away from the artist, you only make a copy. So there is no need to compensate, because the artist still has his own copy.
That kind of reasoning. I know it's flawed, but some people think that way. No amount of legislation is going to change that attitude. Just live with it. There are always going to be people who take advantage of you and you'll not be able to stop them, for whatever reason. Adjust your expectations and marketing models to the new age we're in right now.
The problem many people have is: "If I can load it into my computer, and have it in my possession, why can't I use it as I see fit? If artists don't want their work to be stolen, they shouldn't put it on the Internet to begin with, should they?" The distinction between the right to watch, but not to create derivatives, or to resell, is too far fetched for most people, I think.
If you find a penny on the street, you put it in your pocket and it's yours. Same with things you find on the Internet. And the best thing is, you don't take it away from the artist, you only make a copy. So there is no need to compensate, because the artist still has his own copy.
That kind of reasoning. I know it's flawed, but some people think that way. No amount of legislation is going to change that attitude. Just live with it. There are always going to be people who take advantage of you and you'll not be able to stop them, for whatever reason. Adjust your expectations and marketing models to the new age we're in right now.
I think in general the amount of harm from average people who don't understand copyright laws using photos found on the internet is minimal. In the BIG picture if the infringement is HUGE and is well known or visible it gets caught and everything (hopefully) works out in the end in some fashion.
The idea that every possible infringement needs to be stopped is just crazy. Also the concept of COPYRIGHT is NOT difficult to understand. The basic concept is very simple, if you didn't create it, didn't pay for it, it isn't yours... so don't use it. How hard is that to understand? There are some "gray" areas but the general idea is a good starting point. If you are in a situation that isn't clear then you should research it.
Ignorance of the law is not a good enough excuse.
I didn't know that spending the night at a new girlfriends apartment in Maryland for 30 consecutive days (wink wink nudge nudge) without registering my car was against the law. Even so, the 6 ATF and SWAT guys with guns, who surrounded my car one morning were still going to arrest me if I showed up there again. Time flies when you're having fun.![Wink ;)](./images/smilies/icon_wink.gif)
p.s. I don't know the exact details of the incident with the stock photo house and the wedding picture. I think that was part of the law suit to find out HOW they got the photo in the first place. I am not sure but I think they didn't know themselves or maybe it was sold to them by the original photographer (it was an old photo and I think was in the "retro" category).
Rremember wedding photographers own the rights to the images and a photographer could have sold the image to the stock photo company without getting a waiver or maybe lying about it..
The photographer may own the copyright to the image but the people IN the image still own the rights to their own image being used for COMMERCIAL purposes. (news or journalism is excluded from this I think... but I'm not an expert).
This is why they blur people's faces in reality shows. The person in the footage refused to sign a waiver to have their image displayed. If a reporter is documenting a natural disaster they aren't required to get those kinds of waivers. If a film crew is shooting a movie and someone's image is in the movie... then a waiver is needed.
This could be a way to sue around any bill giving away copyright of photographs.
----
A friend of mine years ago produced and sold a calender of drawings of famous celebrities. This calender included a portrait of Barbara Streisand. She sold it through mail order (way before the internet). Later she was contacted by Barbara Streisand's lawyers and was forced to return ALL the money earned, and to stop selling the calenders.
If Streisand's lawyers or her "people" had never seen the calender they would never have known about it and who knows what would have happened. As was stated in the article in the previous post it will still be up to us to find infringing use of our works and put a stop to it.
-vern
The idea that every possible infringement needs to be stopped is just crazy. Also the concept of COPYRIGHT is NOT difficult to understand. The basic concept is very simple, if you didn't create it, didn't pay for it, it isn't yours... so don't use it. How hard is that to understand? There are some "gray" areas but the general idea is a good starting point. If you are in a situation that isn't clear then you should research it.
Ignorance of the law is not a good enough excuse.
I didn't know that spending the night at a new girlfriends apartment in Maryland for 30 consecutive days (wink wink nudge nudge) without registering my car was against the law. Even so, the 6 ATF and SWAT guys with guns, who surrounded my car one morning were still going to arrest me if I showed up there again. Time flies when you're having fun.
![Wink ;)](./images/smilies/icon_wink.gif)
p.s. I don't know the exact details of the incident with the stock photo house and the wedding picture. I think that was part of the law suit to find out HOW they got the photo in the first place. I am not sure but I think they didn't know themselves or maybe it was sold to them by the original photographer (it was an old photo and I think was in the "retro" category).
Rremember wedding photographers own the rights to the images and a photographer could have sold the image to the stock photo company without getting a waiver or maybe lying about it..
The photographer may own the copyright to the image but the people IN the image still own the rights to their own image being used for COMMERCIAL purposes. (news or journalism is excluded from this I think... but I'm not an expert).
This is why they blur people's faces in reality shows. The person in the footage refused to sign a waiver to have their image displayed. If a reporter is documenting a natural disaster they aren't required to get those kinds of waivers. If a film crew is shooting a movie and someone's image is in the movie... then a waiver is needed.
This could be a way to sue around any bill giving away copyright of photographs.
----
A friend of mine years ago produced and sold a calender of drawings of famous celebrities. This calender included a portrait of Barbara Streisand. She sold it through mail order (way before the internet). Later she was contacted by Barbara Streisand's lawyers and was forced to return ALL the money earned, and to stop selling the calenders.
If Streisand's lawyers or her "people" had never seen the calender they would never have known about it and who knows what would have happened. As was stated in the article in the previous post it will still be up to us to find infringing use of our works and put a stop to it.
-vern
- synthsin75
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Yeah, I wouldn't worry about individuals use of copyrighted material. It's big commercial interests, making unhealthy sums of money from them, that worry me. Why make it any easier, for people who make money by producing no viable product, to make more easy money? Unscrupulous corporations will always do more harm than unscrupulous individuals.
Now I don't know if this is as inevitable as some make it out to be, but I think that this sweeping a change to copyright law will ultimately do more harm than good. Probably the part that worries me most is the limiting of damages. Considering that damages, I think, would be in relation to the money made from an other's copyrighted material, it stands to reason that big business would have more to lose than in individual copyright infringer.
Now I don't know if this is as inevitable as some make it out to be, but I think that this sweeping a change to copyright law will ultimately do more harm than good. Probably the part that worries me most is the limiting of damages. Considering that damages, I think, would be in relation to the money made from an other's copyrighted material, it stands to reason that big business would have more to lose than in individual copyright infringer.
Well, suing is mostly about money and greed. Look what happened when YouTube was taken over by Google. It has to be a good time to live in for copyright lawyers. ![Wink ;)](./images/smilies/icon_wink.gif)
Mind you, it is hasn't been like this always. IIRC, in the Middle Ages, in Western Europe, copying other people's work was seen as a normal practice. In fact, it was often the only way for people to see a work of art, or to be able to read a book (if you were able to read Latin). There was no compensation for this for the artist. Artists weren't seen as a special class of people, but just as someone with a profession, like a brick layer. You don't sue someone using a particular form of brick laying that has been copied from another brick layer. In analog, you don't sue someone who copies art from another artist. Most works of art, therefore, weren't signed by the artist(s).
![Wink ;)](./images/smilies/icon_wink.gif)
Mind you, it is hasn't been like this always. IIRC, in the Middle Ages, in Western Europe, copying other people's work was seen as a normal practice. In fact, it was often the only way for people to see a work of art, or to be able to read a book (if you were able to read Latin). There was no compensation for this for the artist. Artists weren't seen as a special class of people, but just as someone with a profession, like a brick layer. You don't sue someone using a particular form of brick laying that has been copied from another brick layer. In analog, you don't sue someone who copies art from another artist. Most works of art, therefore, weren't signed by the artist(s).
and yet another volley ...
----------------
FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works: No Myth
We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.
How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators' Partnership testified against it in both the House and Senate. http://www.illustratorspartnership.org/ ... term=00203
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...
“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”http://oncopyright.copyright.com/2008/0 ... ar-screen/
Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. http://oncopyright.copyright.com/2008/0 ... ar-screen/
Since that would give us only a month to notify artists, we decided to start now.
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
http://www.law.cornell.edu/wex/index.ph ... n_overview
Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” http://www.illustratorspartnership.org/ ... term=00203
Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.
“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.
“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
A: Maybe so, but under this bill
-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” http://www.law.cornell.edu/treaties/berne/5.html
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments http://www.copyright.gov/orphan/comment ... dstein.pdf
It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” http://www.copyright.gov/orphan/orphan-report.pdf
Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/tri ... m3_e.htm#1
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
"If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly www.newyorkartworld.com/commentary/holland.html “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/ ... term=00185
----------------
FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works: No Myth
We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.
How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators' Partnership testified against it in both the House and Senate. http://www.illustratorspartnership.org/ ... term=00203
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...
“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”http://oncopyright.copyright.com/2008/0 ... ar-screen/
Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. http://oncopyright.copyright.com/2008/0 ... ar-screen/
Since that would give us only a month to notify artists, we decided to start now.
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
http://www.law.cornell.edu/wex/index.ph ... n_overview
Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” http://www.illustratorspartnership.org/ ... term=00203
Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.
“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.
“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
A: Maybe so, but under this bill
-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” http://www.law.cornell.edu/treaties/berne/5.html
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments http://www.copyright.gov/orphan/comment ... dstein.pdf
It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” http://www.copyright.gov/orphan/orphan-report.pdf
Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/tri ... m3_e.htm#1
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
"If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly www.newyorkartworld.com/commentary/holland.html “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/ ... term=00185
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