Orphan Works Law

Still reading about this, but it seems like something to worry about.

Its a bill in congress that seeks to change copyright law which will require all work we have ever done and ever do to be registered (for a fee), otherwise you would lose your copyright, and anyone could use it without paying you a cent.

Current law assumes passive copyright.

To learn more:

http://mag.awn.com/index.php?ltype=Columns&article_no=3605&page=3

and a brad holland interview:

http://www.sellyourtvconceptnow.com/orphan.html

11 comments

  1. Hi there – your entry showed up in my google alerts, and I wanted to correct a misconception that the current alarmist “articles” have been spreading.

    Under international law, which the US is in agreement with (the Berne Convention, TRIPS) the Copyright Office is not allowed to require that works be registered in order to be copyrighted. What the articles are referring to here is a suggestion made in the 2006 Copyright Office report that private registries in each area of creation (i.e. music, visual, etc.) would be helpful to both artists and potential derivative users. The Copyright Office is still considering this issue.

    I’ve talked more about this here, if you’re interested:

    http://foresthouse.livejournal.com/457847.html

    (P.S. I am not affiliated with the Copyright Office, lobbyists, or any artists’ groups, and I am a firm believer in artists holding onto their copyrights. I just feel people should have their facts straight, and am not a fan of Mark Simon, the Illustrators Partnership, and others’ current scare tactics.)

    1. Still on the fence… I agree that the bill is still being debated, so the alarmist tone is a bit over the top, but articles/blogs that claim to debunk the fears don’t seem to address the issue of visual registries.

      The logic of fear seems to be:

      – Since the need for having a search-able data base now seems to revolve round the idea of visual registries, a ‘good faith, reasonably diligent search’ for the copyright owner could be deemed to only require searching in image registries (whether this ends up being public or commercial entities) once the bill is in place.

      – as such unless you spend the time, effort and maybe money to register every piece of art, those you don’t register could be exploited by others.

      – even though the bill would require copyright owners to be compensated if they did show up later , the potential loophole presented by what ambiguities about what a ‘good faith’ search constitutes means that you could end up with legal battles that most visual artists might not be equipped to finance.

      So whilst the bill, if seen in good faith, aims to benefit everyone, what Brad Holland and others are pointing out are the potential abuse of the spirit of the bill/law.

      A representative of commercial photographers also raised similar fears at the latest congressional hearing :

      (http://www.copyright.gov/video/testimony-3-13-08.html)

      1. Well, I’m not claiming to debunk fears…only false statements regarding the proposed bill from 2006 (there’s no current bill even being debated yet).🙂 I think it’s important for people to be informed and consider all angles, and also to actively comment to the Copyright Office with concerns and suggestions when that is invited. So skeptics of the bill are welcome. I just don’t want people to make their decisions based on false information.

        I’ve actually posted again regarding the proposal from 2006 (http://foresthouse.livejournal.com/460132.html) and this part below in particular talks about what I *think* is driving the fears of artists (I’m taking this from what I posted. Hope you don’t mind – so hard to re-type everything!)

        From the Copyright Office’s report:

        A fourth factor to look at is “whether information about the work can be found in publicly available records, such as the Copyright Office records or other resources.” Obviously where information about the type of work is easily available through accessible databases, the user will be expected to search those databases. In particular, “only in a very rare case would a reasonable search not include a review of the Copyright Office records for information about a copyright owner’s identity and location.” Also, depending on the industry, a user might be expected to search other databases. For instance, the Authors Registry, co-founded by the Authors Guild, may contain contact information for an author. For musical works, “ASCAP and BMI are two primary resources,” and SoundExchange might have information on sound recordings. In some industries, the Copyright Office notes, “a particular source could become de facto a necessary component of a reasonable search.” The Office suggests that the private sector would be the best place to develop databases in particular industries, and urges organizations to do so, as “registries are critically important, if not indispensable, to addressing the orphan works problem.”

        I believe what the report says here has been misinterpreted recently. The Copyright Office is not saying, ‘Industries should create mandatory registries.’ What the Office is saying is that, a) basically all searches should include the Copyright Office records; b) in industries where there are established databases, those must be searched as well; and c) if industries develop databases, it will make it easier for works to be found. So, if searches of the Copyright Office and established databases aren’t done, the ‘search’ done by a user might be judged unreasonable just from the lack of those two things.

        I think some people are arguing that this would create de facto “mandatory” registries, because people would feel they would *have* to register with an “established database.” This isn’t what’s being said. What’s being said is that if the potential user DOESN’T search, say, a photo database that tons of photographers use, then the search would probably be deemed unreasonable just from that. However, the Office *isn’t* saying that a reasonable search would necessarily end with a search of a database. Courts could very well expect more from the potential user. For instance, if a photographer hasn’t registered a photo on the established database, but has posted the photo on a personal website, a potential user failing to do, say, a Google image search with all reasonable keywords related to the photo, or for any name or title of the photo that might be embedded in the photo file, might be found to have not met the “reasonable search” criteria.

        (continued below)

      2. (continued)

        I realize there is potential more for abuse with visual works as opposed to things with words, because the search terms are less finite and/or agreed upon by all. However, that potential for abuse already exists – photos/images are already harder to locate information for. One thing to consider is that the Copyright Office recommends consideration of infringement on a “case-by-case” basis – i.e. a judge will decide the issue of reasonableness. If there *is* a photo database, and the infringing user didn’t search it, the case might end there – the artist wins, the infringer doesn’t get the limitation on remedies. Even if the infringing user checked the Copyright Office records and prominent databases, if there are other obvious places the user failed to check (the aforementioned Google image search, a search for any name or title on the photo, inquiring about the photo from whereever he/she originally found it, etc.) the search may STILL not be found to be reasonable.

        One good thing about published visual works is that they have to have originated somewhere. If the infringer has a copy of the photo, where did he/she get it? A book or magazine? There’s probably a credit somewhere in the book or magazine, and the infringing user would certainly be on notice that this visual work had some commercial value. An art gallery? Same. A website? There may not be attribution there. However, did he or she ask the person on the site where it came from? Did that person have an answer? The creator may have been found, just like that. Or, if the site owner got it from another site without any idea where it came from, the next logical place of inquiry may have been found (and another infringing user located). It seems unlikely to me that a court would consider a search “reasonable” if the infringing user had failed to conduct a more-than-perfunctory search of some sort based on where he or she got the image in the first place.

        Yes, the court may look at whether the work was available for search in databases – but if there are other ways to find it, and the creator can rebut the infringing user’s argument of a reasonable search by showing those other easy ways, the search might not be considered reasonable.

        I talked in my paper about the potential for abuse – I very much understand it is there. I think that the more “reasonableness” guidelines the law can provide, the better. But in the end, following the basic guidelines could be looked at as a threshold requirement – i.e. if the infringing user hasn’t met them, he/she can’t even move on to other considerations of reasonableness.

        If this does come up for consideration and comment again, I will certainly add my voice to the suggestions being made, so I’m glad to discuss this.

        1. well… new article in the new york times:

          http://www.nytimes.com/2008/05/20/opinion/20lessig.html?_r=2&oref=slogin&oref=slogin

          which i think sums up the problem: “…precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.”

        2. Hey, thanks for the heads-up on that article. It was an interesting read. I’ll probably address it in more detail on my journal later today, but for now, a couple of points – first off, there’s still no 2008 bill “before Congress” yet. Second, Lessig is mischaracterizing the 2006 bill again:

          The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries.

          I think I know where he got this from (in the 2006 bill) but it’s completely wrong. Maybe he just feels like talking without reading, I don’t know, but nowhere is there a mention of experts employed by libraries in the 2006 bill I’ve seen. That bill refers to possibly encouraging the various fields to create or maintain voluntary databases to make it easier to protect works and/or for potential users to search for works. The idea there is that the databases would be one step in a “diligent effort” to find the owner of a work, though that doesn’t mean the search would stop there – it’d usually be the first in a series of search steps. The libraries thing (if I’m right and he’s conflating the two) refers to how libraries could do a search in order to find potential orphan works they want to use, and how the cost of infringement under the proposed legislation is intended to be low for libraries, because they’d only be penalized for any works they used that then turned out to be infringing (i.e. if they use 100 photos in a display and 10 are infringing, they’d only have to deal with damages for using those 10). I don’t know why he’s mixed the two concepts (and possibly others?) together or what he’s talking about there, really.

          Furthermore, once again Lessig is proposing a solution that would cause the U.S. to have to violate several international conventions/agreements (Berne, TRIPS) that we’ve signed on to. It’s not going to happen – Congress wouldn’t pull out of international agreements if there’s any other solution to be had. I don’t know why Lessig keeps proposing this, because he’s a lawyer and should realize that this would violate the international agreements. But it keeps cropping up.

          Also, bear in mind that Lessig is one of the proponents for making as much creative work as possible free for people to use. So his goal here is not to protect copyright owners’ works. His goal is to make it easier for others to use copyright owners’ works, possibly at the expense of making it easy for owners to protect their works.

        3. I’ve heard the latest congressional hearing and i do think they are very vague about the whole ‘dilligent effort’ thing, which is where the danger lies. So whatever Lessig’s inclinations, I think he’s pointing out a salient fact.

        4. Oh, I’m not saying that there isn’t room/need for improvement in the guidelines that need to go behind the standard, it it’s used.

          One suggestion I had was to provide a “threshold test” for the search (i.e. a potential user must do steps 1-3 (such as looking at any established database, searching for the work and info about it using a prominent internet search engine like Google, etc.). If the threshold test isn’t met, the user automatically loses. If it is met, the user wouldn’t then win – the user would have the burden of proving 1) what steps were used beyond that; and 2) whether those steps were enough to constitute a diligent search. In this area, courts might look to suggested guidelines/search methods generated by an industry, if they had those, as well as consider other possible actions the person could have taken. i’d also suggest that the copyright owner be allowed to present evidence showing what easy or logical steps the searching user may have missed, in order to prove there wasn’t a diligent search.

          The proposed bill may need a lot of work and/or revamping entirely. I just object to Lessig’s mischaracterizations.

  2. When I see this topic pop up, I just link to this thread. It covers the various points as seen by artists. The idea behind the proposal is good, but the execution and wording is worrisome. Theft and such is already a problem — Please check out this case of a shady Chinese publisher. — but I believe the fear is that a poorly written copyright law will make it “legal”.

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