Fri Oct 3, 2008 — by Robert Greenberger

Orphan Works Bill Back Before Congress Today

Creators Object to Onerous Provisions

After killing the Orphan Works bill earlier this week, the House of Representatives is taking it up again today outraging talent from coast to coast. As a result, an urgent call has gone out to fans of all creative endeavors to lobby their congressmen to kill the bill one more time.

According to OpenCongress, the bill “would limit the amount of damages a copyright holder could collect from an infringer of an orphan work if the infringer performed a diligent search for the copyright holder before using their work. The goal of the legislation is to free up for reuse copyrighted works whose holders cannot be found. It would also set up a process for the Copyright Office to certify commercially-produced visual registries to help people locate the holder of a copyright and prevent the orphaning of works in the future.”

The Senate version of the bill can be seen here.

The House version of the bill can be seen here.

Organizations from across the creative arts field have risen to protest the bill as seen at this site.

Wikipedia describes an orphan work this way: “An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. This situation can arise for many reasons. The author could have never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The identity of the author could have been once known but the information lost over time. Even if the author is known, it may not be possible to determine who inherited the copyright and presently owns it. Nearly any work where a reasonable effort to locate the current copyright owner fails can be considered orphaned. However the designation is often used loosely and in some jurisdictions there is no legal definition at all.”

U.S. Representative Lamar Smith introduced a bill in May 2006 trying to tackle the issue by limiting what can be done when the copyright owner cannot be located.  It was withdrawn from consideration that September.  A similar bill surfaced in March of this year and was formally introduced to congress on April 24. The senate version includes the creation of a database of orphaned pictorial, graphic and sculptural works.

While the legislation was supported by libraries, archives, academic institutions, and filmmakers, it outraged creative people. The Artists Rights Society, the Illustrator's Partnership of America the Advertising Photographers of America submitted 12 suggested amendments to make the bill more acceptable. The suggestions were not used.

One of the most vocal proponents against the bill, Mark Simon, said, "It's rather easy to understand how someone could read that phrase and think that a reasonably diligent search for a copyright holder could be a good thing for artists. One problem, the proposed law does not encourage a reasonably diligent search.

"In fact the legislation does the opposite. It makes it easy for someone to do a quick search on a registry and then call a work of art an orphan if is doesn't show in the registry results. No other searching would need to be done to orphan a work. That's not a diligent search. it's lazy!

"The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every work of art, sketch and photo they have ever produced and register them with every upcoming electronic database. Add to that any studio/artist expenses involved, assistants and assumed registration fees, and it's even less likely much work will make its way into the registries."

Creators from all fields have protested the bill and enumerate among their objections:

• The "Dark Archive" - where infringers can register their paperwork in  secret  - will not protect our copyrights.

• An "Open Archive" - with orphaned work exposed to the public - would be a come-and-get-it bank for plagiarists and infringers.

• No rational business owner should have to give access to their inventory, metadata, client contact information, etc. to outside business interests.

• Artists cannot monitor tens or hundreds of thousands of images every day to see if somebody somewhere has infringed their work.

• There are more than a trillion images subject to orphaning each day.

• If someone can't find me, that doesn't mean I've orphaned my work.

• An unsuccessful search for a property owner should not be a license to steal.

• Artists should not have to digitize their life's work at their own expense to comply with a law they don't want or need.

• The high cost compliance would make compliance prohibitive.

• The loss of exclusive rights would undermine contractual agreements with clients.

• We cannot sell exclusive rights to clients if others can publish our work without our knowledge or consent.

• The loss of exclusive rights would devalue our entire inventories of work.

• Small business owners should not be forced to subsidize the business models of Big Internet firms.

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