Are You Worried About the Orphaned Works Copyright Hype?
Click Here to Post a Comment
|
5/1/2008 7:41:21 AM
Jennifer Wambach wrote:
Visit Jennifer Wambach 's websiteI 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:
____________
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.
____
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
Return to top
5/1/2008 9:11:03 AM
K. Henderson wrote:
Visit K. Henderson 's websiteHere is a copy of my letter to my Senator - K
April 30, 2008
The Honorable Pete V. Domenici
328 Hart Office Building
Washington, DC 20510
RE: S 2913, “The Shawn Bentley Orphan Works Act of 2008”
Dear Senator Domenici,
I am an artist from Weed, New Mexico, and I have read this Bill and I am asking that you vote in opposition to it. I make my living painting fine art (Native Americans, Cowboys, Horses, etc.) and I sell my work in galleries across the USA (Santa Fe, Scottsdale, etc). I have supported my family in the art world for over 20 years. I know how copyrights protect my way of life. I have had to use the law to protect my work from thieves in the past.
The Shawn Bentley Orphan Works Act of 2008 claims to fix a minor problem with “orphan” works. Yes it is a boon to libraries, colleges, museums, etc. It is also a boon to those who would steal work. The Bill has major flaws that will significantly impact almost all citizens, but especially artists, and especially visual artists like me. Until the flaws are corrected this bill should be opposed.
A few flaws of many:
Little protection in this act for small visual artists with limited resources. The existing law protects small scale artists. Under the new Bill's logic, even though it’s still illegal to steal a car, if you can show you didn’t know who owned it and made a “reasonably diligent search” to find the owner but couldn’t, then it’s okay if you drove it around for a weekend or two. Proving copyright for visual work is very costly under this Bill.
Visual art copyrights are impossible to accurately catalog with today's technology (How do you describe the Mona Lisa?) yet part of the S 2913 bill is “reasonably diligent search”. Can't be done! The best technology only hits about 90%. Bad for creators of visual art, good for those who just want to steal it.
The copyright office claims that it can not keep a catalog (see my comments above) and abrogates it's responsibility to catalog. They suggest passing their obligations off to the private sector. The S 2913 bill would place cataloging / searching into private hands. What is the cost for a small scale artist to be in the catalog? How much money must I pay some private company to “register” each painting I create? I have painted over 1,000 paintings, so even if the fee were just $10 each the cost to me would be over $10,000. AND this is just for ONE database – there may be scores of these databases (the Copyright Office says at least 2 but maybe many, many more. There is no limit in the Bill)! If there were five (5) databases I would have to spend $50,000 to protect my work! This is a lot for a single artist, small business, like mine.
Some of my clients prefer to have privacy and do not want their painting made public in a searchable database. This Bill would make those paintings “orphans”. Privacy with respect to Copyrights is an important issue not addressed in this Bill.
I could go on and on. The Bill is poorly written, will not protect small scale artists, has flaws that will stifle creativity. What it does well is give away rights to people who did not create anything. Please oppose S 2913, “The Shawn Bentley Orphan Works Act of 2008”.
Respectfully,
K. Henderson
Return to top
5/1/2008 9:54:31 AM
John Berry wrote:
Visit John Berry 's websiteI'm not sure Clint, that you know the ins and outs of the Orphaned Works Bill. It would be in everyones best interest to read up on this Bill. The best info comes from the Ilustrators Partnership website. http://www.illustratorspartnership.org/index.php
For any of us who has had published work in the past, be it illustrative or fine art, you best pay attention. It does matter. You may think this does not pertain to you, but if an entity can copy your work that has not been properly "registered", after doing a cursory "search" to find the owner of the copyright-- I would think that would worry any individual that creates images.
Return to top
5/2/2008 10:48:38 AM
Clint Watson wrote:
Visit Clint Watson 's websiteI have now read the bill three times and just really cannot find the wording that supports the concern.
In particular the way the bill reads it looks like would require a VERY thorough search on the part of the infringer before using the
work. I noticed:
1. It does not excuse an infringer if the work does not contain the
artist's name
2. It requires diligent record keeping and documentation and REGISTRATION of the search that was undertaken
3. The search must confirm to searching "Best Practices"
4. I could not find, as some have said that "searching one database" would be sufficient to qualify as a reasonable search.
In fact, the language of the bill looks like the infringer would be required to search ALL certified databases AND further, it looks like
just because a work was not in ANY database still would not be enough for the infringer to claim to have done a proper search. . . the infringer would have to also search outside of databases.
I also could find no wording that indicated any artist MUST register the work with a certified database for the work to be considered "copyrighted"
The registration process is just EXTRA protection that you don't currently have.
Lastly, knowing how the private market works, I would guess that internet companies would make the databases free for artists to register and charge the people who wanted to search the database before using a copyrighted work.....that's what I would do.
Anyway, that's just the way I read it.
Just so you know, I have no vested interest in defending this bill, I'm completely open minded and will change my mind instantly if I feel
it threatens copyrights. I am interested in protecting artists.
I just haven't seen anything so far that warrants much concern....but, again, I am willing to be swayed. If I do change my mind, I will put the full resources of all my newsletters into helping defeat the bill.
CONVINCE ME by pointing to specific paragraphs or sections in the bill and I will join the fight.
Return to top
5/2/2008 4:06:42 PM
KrisLynn Iki wrote:
Visit KrisLynn Iki 's websiteI have not read the most recent bill proposal. I am a copyright compliance specialist for a stock photography agency, Pacific Stock, in Honolulu, Hawaii. As the representative for many photographers and artists, I am very concerned about that Orphaned Works bill primarily because it is already so difficult to recover and seek remedies for obvious infringements. The infringement recovery process is lengthy procedure that includes researching the usage, the contact, thorough record keeping, cease and desist letters, calculation of fees/costs, negotiations, all of which often results in recovering amounts LESS than the process expenses. Not to mention the need to often educate the infringer themselves about copyright protection and what is okay, and what is not. Furthermore, as it is now, those infringers that begin to read and understand, immediately try to fit themselves within "fair use" rules - regardless of how blatant the copying was, they make excuses/lies of every nature, claim ignorance, etc. The Orphaned Works bill, regardless of how it is phrased and eventually put through, will only increase the number of strands at which infringers grasp and latch onto to try and pull themselves out of this legal bind. In the end, they may pay, they may get away with it, but essentially the process and my job in protecting the rights of my contributors is made more difficult. Another perspective to think about...
Return to top
