Visual artist groups have been up in arms about orphan works reform proposals for a long time. This opposition is based on misconceptions about reform proposals, which we debunk here. One of these misconceptions is that the orphan works bills currently before the House and Senate would require owners to act proactively to protect their rights. So lets talk about the idea of owners being active in protecting their rights.
Let me be clear. The orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. The bills would merely provide a way, with visual registries, to help owners identify themselves as creators of their works. Owners are free to use these services or not.
Having said that,is it so wrong for visual artists to proactively protect their rights? If you believe the rhetoric, the notion of encouraging owners to take active steps to protect their rights seems foreign to visual artists. But is being proactive unprecedented? The answer is NO. It is encouraged by the law and normal practice in many copyright industries.
For example, copyright law requires owners to register their works within 3 months of publication in order to be eligible for statutory damages—which can be as high as $150,000 per work infringed. Even without a legal requirement, many copyright owners act voluntarily to protect their rights. For example, musicians and performers voluntarily register with collective societies such as ASCAP, BMI, SESAC, SoundExchange and Royalty Logic. Various illustrator groups have clearly tried to come up with a collecting society in the US, but it looks like at least around this time last year, they still had nothing together.
Clearly being proactive is beneficial to both owners and users. The Copyright Office registry and the registries of the collection societies, such as ASCAP and BMI, serve to give notice to users about the existence of rights. These registries can also provide an additional source of licensing income by connecting users with owners. In addition, being proactive allows owners to manage their rights efficiently. The musicians’ collectives I just referred to make the process of collection and distribution of royalties possible.
Visual artists could also benefit by registering their works in “electronic databases” or “visual registries” proposed in the orphan works bills. With these databases, we don’t know for sure if they’re going to be expensive, but generally digital technology dramatically drops costs while adding additional functionality. For example, an online service like Flickr.com allows unlimited uploads and storage for $25 a year. Flickr also gives owners exposure and licensing abilities, whereas the copyright office registry gets buried in a text search.
Given the possibilities for benefit, visual artists should pause to at least consider the idea of proactively protecting their own rights before jumping on the bandwagon out to defeat the orphan works bills.
Clearly being proactive is
The reason ASCAP, BMI, RIAA and others oppose net neutrality is because it could break their stranglehold on the music market. True, they act to protect copyrights, but in the process they also work heavily in the opposite direction of freeing up unclaimed orphaned or public domain works for use as well as matching accurately owners and performers with the proceeds from their work.
They operate from a powerful legal premise that allows them to cast a very wide net over any music from any source, policing it with a variety of secretive and intimidating monitoring techniques designed to assess fees to users - including performers - on a forced opt-in principle that assumes whatever is performed or consumed is likely to be in their data base, with a very heavy burden on performers and users to prove that it’s not.
After collecting hundreds of millions dollars through these methods, they use equally secretive, complicated formulas to distribute the proceeds to themselves and their members which may have little connection between actual exposure and use of works to their owners and creators. For example, their sampling technique is biased towards more popular music on commercial stations from which they collect more fees.
It’s not about being “proactive” on behalf of content creators as much as it is about not having choices, given the lock on the market by these heavy-handed middleplayers who are attempting to undermine the market on both sides - for producers and consumers of content - with business models from their brick-and-mortar past employed less to protect property rights than to undermine the new age of competition which essentially doesn’t need them anymore.