The Orphan Works Bill: "Wait Til Next Year!"

Let’s also see if we can remove the cost of copyright registration as that will be a major hurtle for many copyright holders. particularly those who wish to protect their current back-catalog.

I think a better approach might be to explore updated and more flexible definitions of fair use rather than trying to rebuild the copyright laws from scratch.

Super Skoda,

I completely agree with your first comment—in bringing down the costs of copyright registration. This bill has died many deaths and to the extent we thought we’d have to start from ground zero in the next Congress, making things easier and cheaper for owners to register was our next step (and we worked to try to get it into the current bill as well). I really think technology will be the savior here. If we could get the Copyright Office’s system to open up a bit, perhaps market players could help out to streamline the process. Flickrs, Picasas, TinEyes of the world, I’m looking at you.

The second point I also agree with, but quite frankly, it would be easier to get the current legislation passed as opposed to a change in fair use. Gigi linked to the MPAA’s letter above, and that was in opposition to orphan works that they’ve said since 2005 wasn’t a problem for their industry. Can you imagine what would happen if we tried to open up fair use as an issue. I hope we could get there at some point, though, because it’s really needed. As Gigi likes to say, we’ve got VCR laws for a YouTube world.

If the point of new OW legislation REALLY is to make true orphans available for scholarly uses (primarily by museums, libraries, archives, etc.) than a change to Fair Use would be the most direct, and least complicated, way to achieve the goal. Given the potential difficulties of that process, why not insert an exception for commercial use into the current OW bill, thus limiting use of orphans to non-commercial uses? That exception would go a very long way toward satisfying many of the creators’ groups, of which I am a member.

I think technology could be the saviour too, but I am convinced that it won’t be for a long long time. In prior articles, PK has mentioned PhotoSynth as a potential killer app for image recognition. While it is a very good possibility and an incredible app, if you have tried the beta of the product, you will find that a small number of photos require a very large amount of time to analyze. So imagine searching for even a single image (a potential orphan) among milions or billions of copyrighted images!

I recognize you have wonderful reasons to promote appropriate use of orphan works. But please take off the rose coloured glasses regarding technology as saviour.

Actually, I think PhotoSynth is a potential killer app for 3D object recognition—and would especially help sculptural artists document their art digitally. But yes, I do think the pattern recognition technology with PhotoSynth would be amazing when applied to a database like Flikr.

It’s technology like TinEye’s that allows a user to match an image on their computer (or a link to an image on the web) that will help for the “flat” images.

I also think technology will be our savior not just from the recognition front, but also from the registering front.

Use of orphans shouldn’t be limited to “scholarly uses,” and I don’t think we’ve ever said that. The Copyright Office’s study said specifically that we need a policy for both commercial and non-commercial uses. We firmly agree that there shouldn’t be a commercial / non-commercial distinction.

What about the small filmmaker that produces a documentary, and sells it for distribution to PBS. That’s a commercial use and just as important a use of an orphan.

Many of the users that you’re suggesting (libraries, museums, archives, etc), while they may have “non-profit” status, may indeed be commercial users of an orphan. A commercial / non-commercial - like exception exists for the safe harbor provision in the bill, but all kinds of uses would be allowed to take advantage of the orphan works policy (except for using orphans on textiles) outside that exception.

I understand your point of view, but I’d really like to focus on those “true orphans” that you bring up. True orphans have no existing parents. How can we properly separate those true orphans from the ones you’re really worried about—“perceived orphans”—those works who have living and breathing owners, but for whom a user cannot locate. But maybe you would disagree and say that even a “true orphan” shouldn’t be used?

Gigi Sohn wrote:

“…the more enlightened of those artists saw that the world around them was changing and that it was perhaps time to take matters into their own hands to ensure that their works wouldn’t become orphaned. Here’s what the President of the Graphic Artists’ Guild had to say on that point:…”

---

Sorry, Gigi, but with all due respect you couldn’t find a more irrelevant group to support your view than the Graphic Artists Guild. It is sadly a shell of what it once was and along with ASMP - the ONLY artists rights (?) group who’ve chosen ‘a seat at the table’ in exchange for giving into the internet giants pushing for this OW legislation. They are NOT seen as leaders by professional creatives in our industry. Look at their membership numbers. They do not speak for me. These 80+ creators’ organizations opposing the U.S. Orphan Works Bills do:

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273

Oh, and read this letter to better appreciate OUR reality: http://ipaorphanworks.blogspot.com

Thanks.

btw, larry lessig signed the petition. how about you????

Sign the Petition!

As members of A Million People Against the Orphan Works Bill, we believe in free speech, the right to privacy, and the critical need for independent voices. We, like so many, are deeply troubled by any government policy or legislation that affects peoples’ control over their art, photographs, videos, music, and ideas.

Please help us stop Senate Bill 2913 and House Bill 5889 by CONTACTING your Members of CONGRESS and telling them to vote NO.

Call Congress For Free: 1- 800-828-0498.

Please sign and circulate our petition:

http://www.PetitionOnline.com/Stop2913/petition.html

(please e-mail the link to friends, and colleagues, post on blogs, websites, facebook, myspace, digg, reddit, delicious, etc)

This petition is sponsored by A Million People Against the Orphan Works Bill, a grassroots group. All people are welcome to participate. The petition has been endorsed by the Illustrator’s Partnership, Free Lens, and Union of Photographic Creators.

http://www.facebook.com/group.php?gid=18736567652

http://www.flickr.com/groups/donttreadonme/

To write Congress directly:

Go to www.congress.org and enter your zip code. On the new page, click (compose your own message to Federal elected officials). Personal letters are most effective. Please include the link to the petition or cut and paste the petition text into the e-mail.

Form letters to Congress via Illustrator’s Partnership: http://capwiz.com/illustratorspartnership/home/

FOR MORE INFORMATION PLEASE USE THESE Links……..

Orphan Works Opposition HQ www.owoh.org

David Burnett, TIME Magazine contract photographer and co-founder of Contact Press Images, Speaks out Against s.2913 and hr.5889. http://www.foto8.com/home/content/view/574/31/

A Million People Against The Orphan Works Bill http://www.facebook.com/group.php?gid=18736567652

http://www.flickr.com/groups/donttreadonme/

Good Blog and Groups opposing the Bill http://stevemarselphotoblog.typepad.com/stevemarselphoto_blog/2008/05/orphan-works—-groups-opposing-the-orphan-works-bills-as-written—updated.html

Intellectual Property Lawyer’s Blog (bottom of this entry has good information related to traditional art, folk art, Native American art, African art, etc.) http://www.photoattorney.com/2008/05/another-ip-attorney-fights-orphan-works.html

NYT Op-ED (I disagree with his suggestion of there being a 14 year grace period before having to register. I feel there should be no registration of any type) http://www.nytimes.com/2008/05/20/opinion/20lessig.html?ex=1211947200&en=dcf3c1149318e375&ei=5070

Google and Orphan works (please give this one a quick read ;) and post the cliff notes) http://stevemarselphotoblog.typepad.com/stevemarselphoto_blog/2008/06/orphan-works-and-google.html

Letter for International Artist (has good information related to international art) http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

Summary of Bill http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN02913:@@@L&summ2=m&#summary

This article is rather disgustingly biased in support of the bills. Here’s a post from a fanfiction forum:

The way I see it, the spirit (for the optimistic) or the coverup (for the paranoid) is the copyright grey areas for ‘discovered’ shit. Examples include someone finding a fuckhuge pile of awesome photographs but can’t do anything with it without finding the original photographer, or archives being unable to release what they’ve got because they can’t find original creators.

That’s the misty-eyed version. Here’s where it gets ugly.

If the lobbyists for this get their way (including the MPAA and the RIAA, which should tell you something right there), then the way this would work is thus: there are about a dozen ‘competing’ ‘privately owned commercial databases’. If you want whatever you’ve made to be copyrighted, you’ve got to digitize it - easy if it’s a book or something, less so if it’s a picture or painting or music - and put it in each and everyone one of those companies, and each one charges you a fee for the privilege. If you only register it with some of them, then all one has to do is say that they searched the ones you didn’t, considered that a “reasonably diligent search”, and gleefully rape your work.

Now let’s pause a moment and consider what is and isn’t copyrighted. The fanfics you’ve written? Copyrighted, with a slight question mark in the case of the universe. Your original fictions you may have dabbled with? Copyrighted. Your forum posts here? Copyrighted. This very post is copyright (c) Tehan, and I don’t even have to say so. You take a photo and put it on photobucket? Copyrighted. You scribble a quick drawing and shove it on DeviantArt? Copyrighted.

Under these laws? None of those are copyrighted unless the person that makes them takes the time to register them with the ‘privately owned commercial databases’. Do you want to do that - while paying the fees - for every picture you take, forum post you write, drawing you scribble down, fic idea you have?

No?

Then the corporations I fucking guarantee you are supporting this bill are free to strip-mine the entire fucking internet. Songs, pictures, stories, essays, ANYTHING that’s not in one of these little databases can be used by them, and there’s not a fucking thing you can do about it.

Oh, and just for fun, these databases? They’re gonna be public domain. After all, no point having them if people can’t search them, right? So if someone doesn’t care about breaching copyright law - AND I THINK THERE’S ONE OR TWO SUCH INDIVIDUALS ON THE INTERNET - they can rip your story off straight from the theoretically copyright-enforcing database.

The comments posted here are meant for back-and-forth discussion, not for copy/paste propaganda. Please be respectful of that.

“a policy for both commercial and non-commercial uses. We firmly agree that there shouldn’t be a commercial / non-commercial distinction”

Funny, because the “both” in the CO’s statement can also be read to mean, “a policy for commercial uses and a [separate] policy for non-commercial uses”. I guess it’s in the way you want to interpret it, but to me it makes a big difference.

Semantics aside, let’s talk about the “true orphans” as you describe them. I don’t know any reasonable copyright owner, including myself, that is against the non-commercial use of “true” orphans, nor very few that are against even the non-commercial use of “perceived orphans” (again, including myself). Some slight few more are against the commercial use of true orphans, and the vast majority are strongly opposed to the commercial use of perceived orphans. I would describe my own views this way. I would be willing to concede the use of any work for any non-commercial purpose, and the use of truly orphaned work for any purpose, but the problem for me and most of us, I think, arises from where the burden of proof lies to determine if a “perceived” orphan is, in fact, a “true” orphan when it comes to a commercial, money-making use. This version of the OW Bill, while it does not remove the concept of intellectual property, so fundamentally shifts the burden of enforcement to rights-holders as to make it nearly impossible to enforce our rights to our property.

I have been a full-time professional photographer since 1996, and an active hobbyist long before that. My image files contain over 100,000 images, roughly 2/3 of them analog, and all of them are registered with the Copyright Office at great time and not insignificant expense. For years, I have complied with the requirements of the law in order to avail myself of the most copyright protections available for my images. Why must I now, under provisions of this bill, re-register ALL of my images in multiple private databases at even greater expense in order to have not even the same level of protection? Why is up to the potential infringer to determine if their own search to locate a creator constitutes “reasonably diligent”? Why are there no punitive penalties available to punish infringers who actively cheat the system — where’s the stick to enforce the law? And why is it the responsibility of the rights-owners to search an “intent to infringe” registry (if it’s even accessible to us) of what will quickly be millions of visual works? How are we supposed to do that, just start scrolling through looking for anything that might be ours? If technology is the answer, why shouldn’t the potential infringer be required to use the technology to search a single database, not just stick up a virtual post-it note somehwere and answer, “well I tried leaving a note?”

Why not create one single database maintained by the CO? As a start, they could migrate all existing registrations into it. Why not require that copyright owners update their contact information every 3-5 years as a condition of maintaining their copyrights, then have rights expire not from date of death but from date of last contact update — ICANN requires it for domain names, why not the CO for copyrights?

Even better yet, why not address the problem of orphans at its root, and not argue over the logistics of databases and determining burden of proof. If Congress were to simply broaden the Fair Use exceptions, then most or all of the non-commercial uses (and these terms would need to be defined, but I’m speaking in generalities) could be easily included in one motion — regardless of true vs. perceived orphans — and solve half the problem (the non-commercial half). This wouldn’t do anything to address the commercial uses of orphans, but it would go a long way towards making copyrighted works available for many uses to benefit the general public.

As to commercial uses, the problems lies in the distinction between true and perceived orphans. Until that distinction can be made more clearly, I believe it is unfair and sets a dangerous precedent to so dramatically backpedal and attack the ability of copyright owners to charge fairly for the use of their creations, in favor of other parties who want to charge for another product whose existence is dependent upon an original, copyrighted work, made by someone else. If we’re increasing the general public’s access to both true and perceived orphans for scholarly, historic, and cultural reasons, then to say that copyright owners don’t deserve a share of the pie for commercial uses is simply taking from one hand to give to the other. It’s the logistics of how to determine what is truly orphaned and what is a perceived orphan that are mucking this up. We’re trying to split hairs when all we need is to comb some one way and some the other.

As to the question of non-profit entities having potentially both commercial and non-commercial uses and how to police that, it’s clearly no different than any other entity that currently has the right to infringe a copyright for one of the Fair Use provisions. Some uses are permitted under Fair Use and others aren’t — it makes little difference who the user is. The law is prepared to make this distinction for Fair Use and it could make the same judegments for commercial vs. non-commercial infringement, regardless of whether the infringer has non-profit status.

Any suggestions on how to separate perceived vs. true orphans, or perhaps you doubt the premise that using a copyrighted work for commercial gain without the permission of the rights-owner is a fundamental shift in responsibilities and unfairly favors the rights of one over the other?

Thanks for your thoughtful comments, I really appreciate your taking the time. Here are my replies:

Why must I now, under provisions of this bill, re-register ALL of my images in multiple private databases at even greater expense in order to have not even the same level of protection?

You wouldn’t. There’s nothing in the bill that requires you to lift a finger. If you want to upload these files to a site like Flickr, go ahead, but there’s no requirement that you do anything. I would imagine that if you’re a professional, then you already have a website that gets your works out there. If that’s the case, great! A service like TinEye.com might come along and crawl your website, so if someone like me finds a photograph of yours but doesn’t know you’re the owner, I could submit it to the search engine and it would point me to your website. But if you have all your images in a shoebox, can you understand why it’s going to be very difficult for me to find you? If all your images were group registered, can you understand why it’s going to be very difficult for me to find you? That’s why we proposed these Flickr-like group registries, so works could be found. But if you don’t want to do anything, don’t, the legislation wouldn’t have required you to.

Why is up to the potential infringer to determine if their own search to locate a creator constitutes “reasonably diligent”?

It’s not just up to them, they wouldn’t be pulling a search out of thin air. They would have to follow published guidelines that best fit the their scenario. If there were a lawsuit, that would help provide some guidance too. Today, what happens when a potential user can’t find an owner? They look at identifying marks on a photo. If there are none, what then? They might look at where they found the photo and ask others the history. Maybe they find more information about who might have taken the image, or when, or people in the image. Then what? Today, a user might just quit because there’s no additional information, or they may call an expert in the field to help them out. Orphan works legislation would promote search guidelines from the owners, authors, and users community on how to find owners that would help a user in the above scenario. You don’t need legislation to do that, but you do need legislation to allow the use if, after going thru all those guidelines, a user still came up empty. You’d need legislation whether it was for non-commercial or commercial.

Why are there no punitive penalties available to punish infringers who actively cheat the system — where’s the stick to enforce the law?

Sorry for my frustration, but have you read the bill?! Every step along the way there are pitfalls for infringers, that would take them out of the orphan works regime and make them an ordinary infringer—punishable by the full extent of copyright law. If a user doesn’t do a search, that’s potential justification for full damages. If a user doesn’t follow the guidelines, that’s potential justification for full damages. If a user isn’t willing to pay reasonable compensation to the owner, potential justification for full damages. If a user negotiates in bad faith, another justification for full damages. I’m sure I’m not thinking of more, but those are just the off top of my head.

I should also add that you are very different from the rest of your photographer brethren, in that you have registered your works. That’s great! That means if someone infringes your work, you can go to court and ask for statutory damages and attorneys fees. If you hadn’t registered, those wouldn’t be available to you.

And why is it the responsibility of the rights-owners to search an “intent to infringe” registry (if it’s even accessible to us) of what will quickly be millions of visual works?

You’re referring to the proposed Notice of Use Archive (NUA) that was in the House bill. I’m not going to try to defend this one, because it’s not something that PK actively fought for. I will say that it’s always the owners responsibility to police the use of their own works, regardless of whether orphan works policy existed. At least, in the case of the NUA, it would give the owner a single place to look for infringement. Also, if you didn’t find your work there, and found that someone infringed it, you’d be able to call them to the carpet as full-on infringers because their notice didn’t appear in the NUA. Personally, I think if a NUA exists, it should be part of a visual registry, as kind of a lost-and-found. The system could notify any the potential user that the image they found matched one in the registry, as well as notify the owner that someone wanted to use their image. It’s a waste to have it located at the Copyright Office because, much like your registrations, it will be relegated to a filing cabinet, only for the eyes of approved staff who can search the records. Useless!

If technology is the answer, why shouldn’t the potential infringer be required to use the technology to search a single database, not just stick up a virtual post-it note somehwere and answer, “well I tried leaving a note?”

Yep, I agree, and so did the legislation. Potential users have to search any visual registries out there, as well as what’s available at the Copyright Office. They would have to do that first, as it was part of the minimum search requirements proposed by the Senate bill (and presumably ones that the House bill would have adopted).

Why not create one single database maintained by the CO? As a start, they could migrate all existing registrations into it. Why not require that copyright owners update their contact information every 3-5 years as a condition of maintaining their copyrights, then have rights expire not from date of death but from date of last contact update — ICANN requires it for domain names, why not the CO for copyrights?

Fine by me. Problem is that the CO says it won’t do it. It says it doesn’t have $ or expertise to put together such a system. Which is why we proposed that the market come up with a solution. It would be cheaper, more effective, and could also provide visual artists more services they could use beyond a registry. But a market based approach has been perceived as a huge burden by the visual artist community (even though their leaders said that’s what was needed).

If Congress were to simply broaden the Fair Use exceptions, then most or all of the non-commercial uses (and these terms would need to be defined, but I’m speaking in generalities) could be easily included in one motion — regardless of true vs. perceived orphans — and solve half the problem (the non-commercial half).

Again, fine by me. But if you thought orphan works legislation was controversial and difficult to promote, wait until you see who comes out of the woodwork to fight against expanding fair use. It’s a political impossibility right now—not from you, but the large content community. I wish it weren’t such a heavy lift.

As to the question of non-profit entities having potentially both commercial and non-commercial uses and how to police that, it’s clearly no different than any other entity that currently has the right to infringe a copyright for one of the Fair Use provisions. Some uses are permitted under Fair Use and others aren’t — it makes little difference who the user is. The law is prepared to make this distinction for Fair Use and it could make the same judegments for commercial vs. non-commercial infringement, regardless of whether the infringer has non-profit status.

I may agree with where you end up, but not how you got there. Fair use is different because we’re dealing with a limitation on an owner’s copyright; fair use is not infringement, it’s a lawful use. In orphan works, we’re talking about an infringement of an owners copyright, but the liability of the infringer has been minimized. I wish orphan works policy were setup differently to not call these users “infringers,” but that’s how it is. Some uses are/aren’t permitted under fair use, but there’s no clear line of what is permitted and what’s not in all scenarios: fair use is decided on a case-by-case basis. Sometimes commerciality plays a heavier role, sometimes not. But you’re right, the law written to deal with it, and generally there are few substantial cases that call fair use into question, because generally I think people know where the boundaries are. There are also some great guidelines that help users figure out those boundaries. Similar guidelines would have to be written for orphan users, to help people know what’s legal and what isn’t.

As to commercial uses, the problems lies in the distinction between true and perceived orphans…It’s the logistics of how to determine what is truly orphaned and what is a perceived orphan that are mucking this up….Any suggestions on how to separate perceived vs. true orphans, or perhaps you doubt the premise that using a copyrighted work for commercial gain without the permission of the rights-owner is a fundamental shift in responsibilities and unfairly favors the rights of one over the other?

I agree somewhat. The reason I brought perceived/true and non/commercial up here was to ask if you would even be willing to make a distinction. Our goal is two fold and both rely on each other: to help make sure all “perceived orphans” are associated with their rightful owner & to ensure that if works were truly abandoned and were “true orphans,” that they be allowed to be used. Copyright law used to make this easier for everyone—when there was a registration requirement and renewal provision. It was clear when someone didn’t want to maintain or enforce their copyrights. That’s gone today, and along with it so many works that have fallen thru the cracks, but unable to fall into the public domain. Those are the works we’re after, not just works where the owner gets disassociated with the work.

I don’t know how to make a legal distinction between a perceived and true orphan, except to have it be determined on a case by case basis by the person who’s looking for the work. I think there are ways to help find the owners of “perceived orphans”:

1. making it easier for visual artists like you to register their works;

2. making sure that registration is useful to anyone looking to identify a work is just as important;

3. providing guidelines to help users find the owners;

4. incentivizing technology that enables owners to be found just by their image;

That list isn’t exhaustive, but each represents opportunities that should help to dramatically, as you say, “comb some one way or another.”

I can understand the need and desire to make available the broadest range of knowledge to the public. Seems like a no-brainer. But as an artist — one who has had several works “borrowed” by unscrupulous publishers under the current copyright law — I oppose anything that makes it any easier for my work to be used for another’s purposes.

I oppose this bill as it now stands, and support the Illustrator’s Partnership’s amendments to it. I am also advising every artist I know — I run an art forum with hundreds of members — to take steps to protect themselves against this legislation by controlling their images, and access to those images by keeping every image that goes online as small and low-resolution as possible. If I can’t stop organizations like yours from taking the barn door off it’s hinges, at least I can make sure there’s nothing inside worth “borrowing.”

“Yep, I agree, and so did the legislation. Potential users have to search any visual registries out there, as well as what’s available at the Copyright Office. They would have to do that first, as it was part of the minimum search requirements proposed by the Senate bill (and presumably ones that the House bill would have adopted).”

You should be able to see what you’ve said here can be perceived as a need use these registries. If they are to be required in the so far non existent guidelines that effectively makes it a requirement for anyone to protect their work.

Since there are so far no guidelines artists are in the dark here. Is a user required to post a text description somewhere or an image saying they’d like to use it and expect the artist to find them? Or are they expected to use registries, search google for terms related to the image, look in libraries, use tineye, or contact peers (because certainly I can identify work of others in my genre easier than the non-artist but that is also not a foolproof method unless they are asking people who do similar work or are in the same country) or publishers who might know? If they find the artist’s name must they actively try to track them down through multiple means (not simply give up if they can’t find an email)? How does one prove and document all this? What is required? Are they ineligible for protection if they cannot document it? What if it is a foreign work?

In 10 years of having my work online I am well aware that that the non-creator public is woefully uninformed and ignorant of copyright law. So I don’t doubt that this bill we be the basis for yet another copyright myth and easy excuse that will lead to more infringement. Now whether those parties would succeed in a court case I have no idea, but I do know it will waste more time and cause loss of productivity for the creator to deal with or track down these users, or go to court to sort it out when they may not have had to under current law.

I do everything I can to protect my work yet my publishers use images without watermarks, retailers and fans take photos and scan the products. Even if those are credited other people take them and pass them around. Those images are out there without names. Policies of sites like picasa, photobucket and the majority of photo sites allow anyone to order photos of anyone’s uploads including the large amount of stolen images there. Infringement from small business abounds on Ebay. Many supposed “clip art” sites are full of copyrighted works pulled from all over.

I take many hours out of my week to search and make sure my work is not being sold illegally, and tinyeye has been helpful but it’s not perfect yet (It’s new and non many people who don’t follow these things would know of it. I am hoping it will index sites like ebay). Alone, I do not really have time to do this and it hurts my productivity and ability to make a living. Any further tasks piled on by this bill will be doubly frustrating.

What of the millions of images created by artists and sold before the internet, before anyone digitized images? How can those be added to databases if the creator does not have copies? What about the illustrator with 20 years of work who barely has time to do his paying work? How is he going to digitize 20 years of work?

When many of us were young we did not think to keep copied of works we weren’t proud of. Again, many artists would not want all their works in a public database, whether because of subject or because of quality. We have portfolios showing our best work for a reason.

Your desire to eliminate any practical protection of my copyright (I am an artist) is truly selfish. I would urge you to work with the Illustrator’s Partnership, not against it, to come up with the appropriate Fair Use exceptions needed to meet the needs of libraries, documentary filmmakers, and other truly non-profit activities (not non-profit institutions- who form the back bone of my client base). Find a definition of Orphaned Works that does not drag my art into your schemes. Offer opt-in databases that use open licenses standards. Offer free listings WITH copyright protection if you want to help users find owners. The legislation you helped author this session was a Rube Goldberg device that exposed and endangered the livelihood of millions of artist around the world, not just the US. Even Lawrence Lessing, he of anti-copyright fame, said it stank.

Start collaborating with copyright owners, not fighting them. If you don’t want to pay them for their creations, make your own. But don’t copy mine and claim them as your own.

“perceived orphans”
Alex Curtis wrote:
I understand your point of view, but I’d really like to focus on those “true orphans” that you bring up. True orphans have no existing parents. How can we properly separate those true orphans from the ones you’re really worried about—“perceived orphans”—those works who have living and breathing owners, but for whom a user cannot locate. But maybe you would disagree and say that even a “true orphan” shouldn’t be used?

---

Indeed the legislation proposed does not enable “perceived orphans” to be weeded out. That is the whole reason it is unworkable in any sort of business model that Artists can make a living at. The whole thing places the artist at a disadvantage and make copyright protection an unprofitable pursuit, thus no enforcement. Thus no motivation to create art as a way to make a living.

Show me a definition that, without litigation, can guide users to true orphans, and then we can talk. If your definition requires computers to judge the “orphanness” of an image, you have failed. If your definition requires every image in the world be accessible to this process you have failed. You will need to accept that some images will not be amenable to inclusion, and I will need to accept that some images will be included that I don’t think should be. That is called compromise.

Alex, thanks to you as well for the debate. Unfortunately, I feel we’re going to have to agree to disagree on this. I’ve got clients who need me to work for them, so this may have to be my last post here. But let me leave with a few comments.

You write: “There’s nothing in the bill that requires you to lift a finger. [snip] That’s why we proposed these Flickr-like group registries, so works could be found. But if you don’t want to do anything, don’t, the legislation wouldn’t have required you to.”

Yes, but you’re missing my point. While I’m not legally required to lift a finger, if I want to enjoy any hope at all of not having my works “orphaned” by someone performing a “reasonably diligent” search, then I must register them with the registries. One of the definitions of “reasonably diligent” is to search these yet-to-be-created databases — if I’m not in there, I won’t be found and my work can be declared an orphan, even though it is already registered with the CO.

In addition, beyond the actual registration, the OW bill removes the ability to enforce my rights for all practical purposes. Current copyright requirements state that I must register my images with the CO in order to be eligible for the largest possible damages in the event of an intentional infringement (not accidental, but intentional). Those punitive damages are the stick that keeps people from stealing my works, or commissioning them and then delaying payment to the point of ridiculousness. Otherwise, I realistically have zero chance of forcing a large publisher, or even a local architecture firm, to pay me appropriately and on schedule. This OW bill removes that stick, AND requires I re-register images in new databases in order to have ANY practical hope of keeping my works from being orphaned.

You write: “Fair use is different because we’re dealing with a limitation on an owner’s copyright; fair use is not infringement, it’s a lawful use.”

True enough, my bad choice of words. Clearly we know who’s the legal expert in this discussion!

You write: “I don’t know how to make a legal distinction between a perceived and true orphan, except to have it be determined on a case by case basis by the person who’s looking for the work. “

Alex, we can debate back and forth all we want about the requirements, the logsitics, and the remedies, but your above statement is perhaps the most telling and lies at the heart of our disagreement. You see, I do not believe that the right to determine what is and isn’t orphaned belongs with the person who wants to use the work, but rather with the creator (that’s a lower-case “c”, NOT a capital!). As I tell my kids, “If you have to ask, then it’s not yours is it?” If it’s my work that has met the qualifications and tests to be granted copyright status in the first place (original, creative, fixed in a visual medium, etc.), then don’t I, by implication and by law, have the right to control its use, or NON-use, either by actively disallowing it OR passively by simply not intentioanlly putting it out to the public?

I am perfectly willing to establish a policy of unlimited re-use by anyone for true orphans if they can be determined as such, and as I said before I’d even be willing to discuss a limited expansion of Fair Use for any work, orphaned or not, for broader access for scholarly, non-commercial purposes. However, I do not believe that the desire (not “need”, but “desire”) to use an original copyrighted work for any purpose, commercial or non/, by anyone, should override the financial and ownership incentives currently given to creators and based on hundreds of years of both US and English history, that help drive the creation of the very images that would be exploited.

You write: “It was clear when someone didn’t want to maintain or enforce their copyrights. That’s gone today, and along with it so many works that have fallen thru the cracks, but unable to fall into the public domain. Those are the works we’re after, not just works where the owner gets disassociated with the work.”

But why are you “after” them? To what good? If it’s cultural, scholarly, or historical records that you don’t want lost, those can be addressed specifically — done deal. But if it’s to inspire future creativity through the re-purposing of existing material, then I would argue that the potential for future great works that may or may not materialize based on the possibility of re-using the few decade’s worth of material since this change in registration/notification happened does not necessarily trump the rights of those rights-holders who have created and copyrighted works under established legal guidelines and who rely on those guidelines to enforce their rights to works already in existence. It seems to me, as I said in an earlier post, that this would simply be trampling on the rights of one group (those with works in existence) in favor of another (those who MAY benefit from their use in the future).

I am all for promoting and encouraging creativity in all its forms and outlets for the greater good of our entire society. However, I am also a believer that in a free market, we all have an equal right to profit or lose from the fuits of our own labors as long is it’s not demonstrably to the detriment of our fellow citizens. To me, removing enforcement rights and shifting the burden of proof of ownership from users to creators places a demonstrable burden on rights-holders now, for the potential for future benefit to potentially-as-yet-unborn creators.

Why cut down the trees and destroy the land if you’re not sure you’re going to build the highway?

Respectfully, Andrew Buchanan

Wow, quite the pile on here. Thanks a lot Illustrators Partnership!

I guess I’ll go in order:

Members of the Illustrators Partnership:

Before you take the Illustrators Partership’s word for it, you might like to read our 6 Steps for Copyright reform found here. It’s not that long, and if you’ve been reading the discussion here, clearly you have enough patience to read some more.

DudeVerve: Not quite sure how to respond. Clearly, some people have used your works without permission and you’ve had to deal with that. I’m sorry for that.

No law in the world can stop the unscrupulous—clearly not even traditional copyright law—as you’ve experienced.

It’s our intent that the orphan works legislation be used to allow the use of a work where an owner no longer exists. In the cases where an owner is found, he’s to be paid for the use. All of the rest of the 20 pages of the legislation was drafted in an effort to stop those unscrupulous actors you speak of, and I think it does the job. I’m sorry you don’t read the legislation that way.

MD

You wrote:

You should be able to see what you’ve said here can be perceived as a need use these registries. If they are to be required in the so far non existent guidelines that effectively makes it a requirement for anyone to protect their work…Since there are so far no guidelines artists are in the dark here.

I don’t think that’s correct, and here’s why. The law doesn’t require owners to do anything. If a user doesn’t find an owner’s work in the Copyright Registry, or even a visual registry, that’s not where the user’s search ends, it’s merely the beginning. Another way to read this: the fact that an owner’s work isn’t found in a registry does not end the search.

Of course orphan works guidelines are non-existant—the law isn’t in effect! There are guides on how to find owners of works, however. Just one example: Michael Donaldson has written a book that helps people clear rights and I understand that he’s already updated it with a guide to help find owners of orphans. I understand archives and museums have guides that they require their staff to follow to find the owner of a work. I believe filmmakers do too.

Besides that, the orphan works legislation has a delayed effective date. Orphan works wouldn’t be immediately available for use right when the bill is passed, I believe plenty of time for all parties to put together best practices and allow owners, if they decide they want to, to upload works to a site like Flickr.

Is a user required to post a text description somewhere or an image saying they’d like to use it and expect the artist to find them? Or are they expected to use registries, search google for terms related to the image, look in libraries, use tineye, or contact peers (because certainly I can identify work of others in my genre easier than the non-artist but that is also not a foolproof method unless they are asking people who do similar work or are in the same country) or publishers who might know? If they find the artist’s name must they actively try to track them down through multiple means (not simply give up if they can’t find an email)?

In the Senate bill, the responsibility is on the user to find the owner. The House bill had this notion of a Notice of Use. If you read one of my comments above, you’ll see that I think the best idea for this is a lost-and-found. The EU have something like what I’m talking about, called MILE, where anyone can upload an image for which they cannot find an owner. An open archive lets anyone come along and help others properly identify the owner. There are pitfalls from leaving this open, as I’m sure you can understand. I think there are technological ways of making this work, without attracting all the bad actors who just want something for free. I think users will have to do pretty much all of what you’ve suggested. If you look at the minimum requirements of the Senate bill:

(aa) a search of the records of the Copyright Office that are available to the public through the Internet and relevant to identifying and locating copyright owners, provided there is sufficient identifying information on which to construct a search; `(bb) a search of reasonably available sources of copyright authorship and ownership information and, where appropriate, licensor information; `(cc) use of appropriate technology tools, printed publications, and where reasonable, internal or external expert assistance; and `(dd) use of appropriate databases, including databases that are available to the public through the Internet; and `(II) shall include any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.

back to your questions:

How does one prove and document all this? What is required? Are they ineligible for protection if they cannot document it? What if it is a foreign work?

The legislation requires that the user document the search. That documentation would have to be pretty detailed because if the user is sued, they’re going to have to rely on it to maintain the reduced liability. We believe the best practices again (and a lawyer) will help the user figure out what it is that they’ll need to do to maintain these records for a court, should it come to that. Yes, they will be ineligible for protection if they do not document their search. I believe all of this is the same if it’s a foreign work as well.

What of the millions of images created by artists and sold before the internet, before anyone digitized images? How can those be added to databases if the creator does not have copies? What about the illustrator with 20 years of work who barely has time to do his paying work? How is he going to digitize 20 years of work? …We have portfolios showing our best work for a reason.

The question with those images is what did the owner sell when he/she sold the copies? The rights to the image or just copies of the image? If the rights, then the owner no longer owns the image. As for the back-catalog of images, I’ve written about ways to help decrease the cost of digitization recently. I would argue that if an owner wants to upload their images, that he look to his most valuable works first and digitize those. No, it’s not fair that the world has gone digital. The music and movie industry has adapted and that was a painful process. But time changes things, and technology changes things. I don’t mean this to be harsh but it’s going to sound like it: It’s 2008, if visual artists want to keep making money from their creativity, they need to figure out a plan for adapting to digital and the Internet. This is true without any orphan works legislation, as you know too well.

I’ll comment more on the others tomorrow.

If the market and future court cases determine that a work was an orphan because it was non found in one of these databases, that is no different than legally requiring. You are not legally required to lock your doors in a bad neighborhood either.

When I mentioned sold works I am referring to sold original paintings, photos, negatives etc, not rights. In the case that the artist no longer has the original copy and printed no copies were made they have no way to get this into a database. This is the case for many before the internet and personal computers and scanners were common.

I think you are forgetting that the music industry is largely controlled by large companies and the RIAA. Many musicians have agents, publishers and producers to do that work for them. The lone freelance artist working at home often does not have assistants or funds to pay someone to scan years of work.

“The legislation requires that the user document the search. That documentation would have to be pretty detailed because if the user is sued, they’re going to have to rely on it to maintain the reduced liability. “

I would really hope we should not forced into suing in every instance to stop someone from using our work and could work these things out without going to court. This is just not a good way to do business. There need to be a way to have these matters decided without extra expense to the author when the “reasonable compensation” they get back does not cover the legal fees.

You are also assuming users are honest, understand the laws and have the intent to follow them correctly by getting help from a lawyer. The usual small business person who decides he wants to publish something with no experience does not. He may have heard some rumor that if he can’t identify the author he can use it. So there will be no documents, just wasted time for everyone.

You are very optimistic about technology and the distribution of the correct information. I very much wish it could be that way, but most of us are having to teach users ourselves. In every letter I have written to my congressmen and the copyright office I have asked for a a public awareness campaign and education on copyrights in schools.

I have to ask. Being that you write these blogs…. do you not realize that everything you have written over the past 20 to 30 years can be taken? Not only can it be taken but this asinine bill clearly states that the only recourse you have is to physically walk up to the thief and tell them to “STOP”.

I mean what happen to freedom in this country. What happened to personal property? What happened to value. We are not a communist country! The last time I checked we were a Democracy, are we not? Are you a Socialist or Communist? Would you please answer that for me?

Let’s talk about Small Business and how this effects them. Let’s take artists out of it for the moment. I own a small event planning business. I am also a single mother of 3. Do you honestly think I have the money to register everything I do? What about small restaurants? Are you telling me that someone can walk in look at their menu, take a picture of it and decide they are going to do the exact same and NOTHING can be done and it is ok?

What is wrong with you people? I have another question - WHAT DO YOU HAVE TO GAIN FROM THE ORPHAN WORKS BILL PASSING?

Now let’s get back to the artist. Have you ever heard of the term “starving artist”. You know Ms. Attorney that is said for a reason. Most Artist don’t have the money to register their art work with non-existent registration companies every time they create something. However, if they didn’t someone else could profit from their work, is that really fair? Is that really human?

Let’s move in a different direction… Say your mother loves to paint. She may not want to sell her paintings because she doesn’t want people to see her work. She may be an introverted artist… I am sure you have heard of that term.. it exists too ya know. Are you telling me her paintings have no value?

Another example of another group of people this effects. CHILDREN!!! Are you going to sit here and tell me that if my son brings home a drawing that is really good. So good that I just cannot believe it! After I pick my son up from school we have to go the the store. While we are there my son drops his drawing on the floor. When we get home Nana comes over and my son wants to show her his drawing, but he can’t find it. We even try to call the store and see if they have found it. Let’s even go so far as to say his name was on it. Are you with me so far? Now the local Children’s Hospital is working diligently on an ad campagin, this person happens to walk down the isle where my son dropped his drawing. They pick it up and think.. “Ah-ha! This is what I have been looking for”. They present it the next day and the Hospital loves it. This drawing is plastered all over bill boards across the state. Then one day my son and I are driving downtown and see the bill board. There it is for everyone to see but who gets credit? The person who STOLE IT FROM A CHILD because they have been put in a position where they can.

Again, what do YOU PERSONALLY gain from this bill passing.

I can tell you what I loose. You remember about that event planning business I told you I had? I got into the marketing of it as well as the graphic end of it. So I decided at 32 with 3 small children to go back to Art School.. Good for me right? Not if this bill passes. Do you know why? Because why would someone hire an artist when they can steel it for free? You are taking the value out of my “parental works” (sounds silly doesn’t it - so does “orphan works”) and food out of the mouths of my children. Do you have children Ms. Gigi? If you do then you understand what a mothers rage can do.

I promise you I will do everything in my power to stop this bill. I will work with every organazation who is opposed to Orphan Works open and freely. I will stay up nights researching everything I can.

I could careless about Left or Right on this issue. I don’t give a damn what party the supporters of this bill are I will spread their names to everyone I know. I will post them on everything I can. Grassroots! Remember it! It works!

Having said that. I do agree that copyright needs reform but Orphan Works Should Be Banned! Period!

I promise this bill will effect you too. You just don’t realize it right now. Dig a little deeper. Orphan Works effects everyone, not just artists, not just musicians, not just songwriters, not just photographers - not just professional creators. This bill is a violation of our Constitutional Rights as American People.

How do you honestly not see that? The people Opposed to this are not radical? We are normal people minding our own business creating things we love.. Things you enjoy! You mentioned something about some artists realizing bla, bla, bla… Do you want to know what we realized? We realized we are going to have to take down our websites, myspace, facebook, web spiders etc.

In a time of Financial Crisis… in a time when people are terrified of what is going to become of our Country and themselves. Do you know what they turn to? They turn to a book, photograph, song, illustration, painting most the time they turn to some type of art. The reason they turn art is because it makes them feel good. You can’t possible be any different. Do you honestly think it is going to be easier for you to steel works of art? Hell no, because we are not going to put it out there to be stolen. I don’t leave my house unlocked for someone to just waltz right on in and take something.. because that is the world we live in.

Thank you - Thank you for supporting a more difficult world for “us little people”! Isn’t that the way it always works, people support something they have no clue about. It doesn’t hurt them.. they just like to hear themselves talk and be for a cause. Not realizing what it does to the people in the middle. If you made your nice living off art work you created, would you still support this bill?

I will now ask you for a 3rd time and my soap box is over. WHAT DO YOU PERSONALLY HAVE TO GAIN FROM ORPHAN WORKS PASSING IN THE HOUSE? Please enlighten me. Anytime someone supports something they have something to gain. Tell me your gain. I think the other readers might want to know as well.

I am sorry if I have been nasty but this is my world and future you are trying to screw up. Forgive me if I come across a little upset. I usually have better manners.

blaire scoutten

BGriswold part 1 and part 2:

I would urge you to work with the Illustrator’s Partnership, not against it, to come up with the appropriate Fair Use exceptions needed to meet the needs of libraries, documentary filmmakers, and other truly non-profit activities (not non-profit institutions- who form the back bone of my client base).

I give you this example from the NYTimes where an author (who teaches high school) was writing a book about way station in Canarse, but was prevented from using a key image because the Brooklyn Historical Society wouldn’t let out its images because it didn’t know if they were still under copyright. The images were from 1895 and some thirty years later. The owners of these images cannot be found. It’s a commercial endeavor. Should something like this be prohibited?

Find a definition of Orphaned Works that does not drag my art into your schemes. Offer opt-in databases that use open licenses standards.

You’re right, the legislation does not perfectly weed out the “perceived” from the “true” orphans. But it goes a long way to make sure that a user must go to great lengths (under penalty of infringement liability) to find an owner before he uses a perceived orphan, and that the owner is compensated once she is discovered.

Offer free listings WITH copyright protection if you want to help users find owners. The legislation you helped author this session was a Rube Goldberg device that exposed and endangered the livelihood of millions of artist around the world, not just the US.

I believe those services are already, or will be, out there. It was not my Rube Goldberg scheme, the 2008 version of the bill was crafted to look like the old mouse trap board game) to try to make every potential user walk a tightrope before they could use a work. It was crafted to visual artists’ benefit, we certainly didn’t ask for the 20 pages of it to be written this way. The Copyright Office’s one page legislation was far cleaner.

Start collaborating with copyright owners, not fighting them. If you don’t want to pay them for their creations, make your own. But don’t copy mine and claim them as your own.

Sorry, but perhaps there’s a misunderstanding here. With the exception of the “non-profits” who are allowed to simply take down the work from a website, the legislation requires every artist to be compensated. This is to be worked out between the user and the owner, without having to go to court. Also, none of this legislation permits any user to take a copyrighted work and claim it is their own. Orphan works must be used with attribution, and if the user doesn’t know who the owner is, he must outwardly acknowledge that fact and add an orphan works symbol. But no one would be legally allowed to claim a work as their own.

SeattlePhotog: thanks for your continued back-and-forth and pleasant tone—it’s appreciated.

I understand your points, I really do. You’re saying it’s a catch-22: owners don’t have to do anything, but if they don’t, they’re not going to get found. You’re also saying that you registered all these works to get statutory damages, but here comes along orphan works legislation that allows anyone to use your work without permission to avoid statutory damages. Here are a few points:

1. the user’s search for an owner doesn’t end at Google / TinEye / Flickr, unless an image is found and someone rightly claims ownership (I may argue that a user must go even further to ensure that claimant is the actual owner, but you get my point);

2. If you are a person who has registered all his works, as you previously stated (over 100K images I think you said?), I’m betting that you may have a good number of those available online. Ah ha, I just found you! Even if you haven’t individually submitted those photos to a visual registry, a search engine like TinEye could come along and index your site to allow a user to find and associate you with your image. You could even request that they search your site here. You didn’t have to put your images online or spend the money and time to formally register your works with the Copyright Office, but you made a cost/benefit analysis and decided. I would argue that just like you didn’t have to do anything before, yet you still registered, that you may choose to do something pro-active in the future. And I suggest to you that that is because, for you, being pro-active makes you more money from your creativity in the long run.

3. As for registering and statutory damages, you’ve got me here. For good faith users that are willing to spend time and money to conduct an exhaustive search to find you, and after they can’t find you and you return, compensate you for their use… yes I believe these people should get a shield from statutory damages. The Congress and the Copyright Office agreed. Please understand, that this specific argument is not an “every photographer” argument, it only applies to you and the very few like you who register their works. 91% of photographers have never registered a single one of their works—see pg. 6. You are saying that you put all this time and effort to formally protecting your work, and here we are promoting a bill that seemingly undoes your efforts. You’re right, except that the statutory damages shelter that orphan works provides is only for users who strictly follow X, Y and Z, and then compensate you for the use. For every other person who copies your work without permission, without exhaustively searching for you first, and without compensating you, statutory damages would still apply. So for the 9% of you photographers who register your works, statutory damages still applies to every infringer, except those who tried hard to find you and pay you before they used your work.

4. Times change, technologies change, and laws change. This is a policy argument, and I’m not saying that this is fair. I already said how in the late 80s we got rid of the registration requirement. In the 90s, the laws changed to allow photographers to group register their works. In 1998, Congress gave creators’ heirs an additional 20 years of monopoly (remember it went from the life of the creator plus 50 years to 70 years after the creator’s death). All of the above changes I would argue have been to the detriment of the public and creators, especially those who make their livelihoods from building upon works or those in the public domain. Those that represent photographers have said(pg. 3) that “the number of orphan works is likely to grow as time goes on. Anecdotally, problems with finding the copyright owner to a photograph - at least for the retail photography market - start to increase about 15 to 20 years after the distribution of the work to the client.” This is a substantial problem, that I argue was caused by previous short-sighted legislative missteps, and it’s only getting worse. Times change, technologies change, and laws change.

Your point is well taken about okaying uses for “cultural, scholarly, or historical records.” For those kinds of uses, it may be the case that fair use would apply as it currently stands. But what about when those efforts to document cultural, scholarly, and historical things/events where it’s less clear a fair use? I raised this story above with BGriswold. I don’t think everything can be pigeon-holed into fair use. At least some creators (you might call copiers) aren’t willing to take that legal risk. And I believe you’re going to have this exact same kind of argument if you call for an expansion of fair use as you do in this debate on orphan works. On the flip side for owners against orphan works but for expanding fair use: it will be a harder case for infringement to present in court for owners arguing against fair users than it would be for owners arguing against users of this orphan works bill.

Why cut down the trees and destroy the land if you’re not sure you’re going to build the highway?

I guess my argument is that we have this long line of people, “users,” who are actively saying that they would like (need) better use of works for which they cannot find an owner. They want the highway built. They’ve prescribed a fairly narrow way to give only good-actors access and I’d argue that it’s a “tread lightly” proposition.

You’re points are taken (I hope you understand that they always were). Any other thoughts on how you get just at works who’s owners are long dead with no heirs, without changing the length of copyright?

Some thoughts on the comment above

• Take the NYT article I’m sorry but so a book publisher can’t find the copyright owner of a photo he wants to make a profit from, that is hardly a cultural crime. Use a photo that can be licensed, perhaps there are others just as useful but the publisher doesn’t want to pay for the use. Why do you assume that someone has the right to profit from the creation of another?
• As a creator of works released under a non-commercial creative commons license I would be appalled if a reuser was simply allowed to make a commercial compensation. The works are only released for non-commercial use. If you have a non-commercial use fine, if your use is commercial I do not want to know, they are not available for use, go find something else and keep your hands off these.
• There is a problem with peopel getting copies of old family photographs. Surely its not beyond the wit of the legislature to arrange a simple fix for that, without dreaming up private databases, and a whole raft of legal flim flammery to allow commercial exploitation. In fact the proposed system effectively pushed out those copiers.

Did this legislation only apply to works created in the US or does it allow the theiving of works created by people in West Africa, or Sri Lanka too?

Alex,

Well, I thought I was done but this is too important to stop. Let me say that I, too, take your points as seriously as I appreciate you taking mine. I doubt either of us is going to change the other’s mind as we seem to agree on many of the smaller points but disagree on the fundamental premise of who gains and who loses and why one’s better than the other. As you say, it’s a policy decision and in any policy there will be winners and losers — but I still think you’re wrong ;-) I’ll make one point and offer one suggestion.

First, you write: “statutory damages still applies to every infringer, except those who tried hard to find you and pay you before they used your work.”

You probably are aware of this already, but just in case you’re not, let me explain that many photographers, artists, architects, writers, designers, software makers, and others who create intellectual property engage in the licensing model of doing business. Using that model, those who create the work are paid by the end users based upon the value being gained by the end user — the greater the benefit to you, the more you pay me (after factoring in certain minimums, overhead expenses, etc.). How else are we to put a value on an original, creative piece except by agreeing that it has value to you and therefore I deserve to be paid for it? After all, did VanGogh use $90milion worth of paint, canvas, and time to create his most famous Sunflowers painting? Of course not, and yet collectors bid up that famous work because they were willing to pay that much to own it — therefore it is worth that much. Everyday examples include paying more to my cell phone company for access to their technology for 500 minutes / mo. than I pay for 100 minutes — regardless of how many I actually use. I pay more to Apple or Microsoft for a 5-person user license than I would for a one-person license, regardless of whether I use it for all five people or not. I even pay more to Blockbuster Video to rent a movie or a video game for a full week than just a few days, and I would pay even more to own a permanent copy (which would still not grant me ownership rights, only the unlimited rights to use a single copy as much as I wanted). All of these are examples of the licensing model at work in business every day. As creatives, especially those of us who are in it full time with the intent of earning a decent enough living to support our families, we use this model as a means of determining the value of our creations in the marketplace.

One of the important factors in determining the fee for a usage license is exclusivity — that is, will the photo, design, software, music, slogan, etc. be available only to a single user for a given time period, or in a given location, or forever? If so, then the user gains a much greater benefit by having the creative work associated only with their company (say an advertising jingle, a slogan — “Where’s the Beef?!?” — or a photo in a national ad campaign), and I also lose potential future revenue from other users, so therefore I am going to charge significantly more for its exclusive use.

But with the way the OW Bill is currently worded, this concept of exclusivity is more or less out the window. After all, as copyright currently stands, I register my works in order to have access to the large stick of punitive damages and use it to enforce my right to control to whom, for what purpose, and for how much money I license my images. If I am paid to keep my images exclusive, I can do that. While I can’t control an unscrupulous, intentional misapppropriation of my work, I can use the force of the law to deter or punish those who would intentionally violate my exclusive agreement with a previous client. However, as OW is currently worded, an end user need only make a “reasonably diligent” effort to locate me (as determined by them), perhaps then register the use with the NUA database you mentioned, then proceed to use the perceived orphan work. IF I later discover the use, I would only be entitled to a very small fee as the user, having followed the letter of the law, would be shielded from punitive damages and even from paying my attorney’s fees to try to enforce my own rights. So how is there any way to enforce exclusivity? The entire concept of exclusivity rests in my ability to claim and ENFORCE, as the creator of the work, “exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work [snip] (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending [and] (5) … to display the copyrighted work publicly” http://www.copyright.gov/title17/92chap1.html#106

By shifting the burden of proof of ownership from users to owners, this bill as written would emasculate the abilty of ALL creators, large and small, to charge appropriate fees through the licensing model. Is that really a can of worms we want to open?

Now, on to a suggestion. You asked if I had, “other thoughts on how you get just at works who’s owners are long dead with no heirs, without changing the length of copyright.” Unfortunately, what you’re asking is to prove a negative. Since the law rightly assumes that copyrights vest with the creator at the moment the piece is created, and that it remains so barring any actual evidence to the contrary, you can’t prove that it doesn’t unless you have the actual evidence — a written transfer of copyright, a death certificate more than 70 years old, etc. This is not unlike an assumption of innocence which can’t be disproven without actual evidence to the contrary. The law has simply chosen to value one viewpoint over another: assume innocence until proven guilty, assume ownership until proven adandoned. After all, if you have to ask, it isn’t yours.

So, what I suggest is that what we need is not a change in the assumption of ownership, or in the burden of proof, but in the severity of the penalties for those who infringe a work without intending financial gain (“intent” being something for the courts to decide if/when an infringement was caught, as it is now). Again, what I find myself coming back around to is an expansion of Fair Use, perhaps in conjunction with the NUA, that would more specifically shield non-commercial users from punitive damages. Also, the law could be clarified as to the making of copies for personal use and for purposes of “device transferring” — wasn’t that the language used in the famous Sony Betamax decision in the 80’s? This would clarify, for example, the copying and restoration of family photos, or digitizing them for use in electronic picture frames or web albums that likely are already allowable as long as the owner of the actual print is not duplicating and selling or giving away copies to others. This would be the same as allowing copying of music from vinyl to tape to cd, from cd to MP3, etc.

But unfortunately, any “good faith” or “safe harbor” clauses, whereby a user takes certain steps to shield themselves from possible punitive damages resulting from a commercial use, shift the assumption of ownership from rights-holder to user by assuming that the rights-holder would be willing and able to transfer the rights of usage for any purpose the user wants. As I explained above, there are many reason why this might not be so, exclusivity being one of them, but also privacy concerns, fear of ridicule, etc, as others have brought up.

In a society that places value on personal property, we cannot shift the burden of proof of ownership from user to owner without changing our entire legal system. Much like Good Samaritan laws, we can create shields for those who otherwise violate the law but do so with all the right intentions, but we don’t do that by making a wholesale shift in the basic assumptions of ownership rights.

Andrew Buchanan

Working as an illustrator in Germany, I was (and am) deeply worried about the “Orphan Works Act” in any form which allows “orphaned” works to be used commercially.

It may be quite easy to communicate the need to register ones work to artists in the USA, but, alas, most of the artists do live elsewhere in the world not even knowing of the possibility -nay, the NEED– to register any of their work at a registry in the US to prevent violation of their copyright.

99.9 per cent of all art is produced in other countries – and “orphaned” immediately after production, instantaneously ready for unremunerated infringement in the USA.

With the old draft of the Orphan Works Act as well as a new one (which has yet to come, but will doubtless follow the general lines of the “old” one), and, the internet being what it is, a bound- and borderless medium, no exclusive copyright can be guaranteed to any buyer of any copyrighted work of art produced outside the USA.

Sooner or later many cases of infringement will take place with copyrighted material manufactured for globally acting companies which will not tolerate that their exclusive material is spread around the world by other, US-centered companies.

I’m afraid that WTO’s treaties as TRIPS and the Berne Convention will worldwide be regarded quite a bit more important than changes of national copyright laws which oddly enough seem to mirror the interests of certain stakeholder groups.

Digitalization and digital distribution of information may be a legal challenge for the next decade, but “balcanization” is definitely not the answer to this problem.

Viewed globally this is no matter of “more enlightened artists” who have finally recognized that they “must change their business models” to comply with new economic requirements – this is a matter of self induced exclusion of the USA from worldwide accepted customs of trade.

-Frank.