Orphan Works

There’s a lot of Fear, Uncertainty, and Doubt (FUD) being spread by some who are opposed to orphan works legislation. This is our second Myths and Facts report about orphan works:

MYTH: The bills would take away copyright protection from every work a visual artist ever created!

FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.

If you haven’t seen our previous FUD reports, check them out here.

There’s a lot of Fear, Uncertainty, and Doubt (FUD) being spread by some who are opposed to orphan works legislation. Here’s a quick Myth and Fact about orphan works:

MYTH: The bills would mandate registration of all visual arts in expensive, private registries.

FACT: Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. However, these registries do not have to be expensive. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.

In case you missed it, you can write your Congressional representatives and ask for their support of orphan works here. You can stay up to date on the Facebook Cause: Rescue Orphan Works as well. We need your support for this important legislation.

So, in the past week we’ve had a House Subcommittee markup of the House bill and the Senate was to mark up the bill on Thursday but they held the bill over until the following week. A markup hearing is a hearing without witnesses where the members propose amendments to the bill they’re considering. Those amendments are voted on by the committee or subcommittee members, and then the amended bill is voted on as a whole to be moved out of the subcommittee to the full committee and then the full committee to the full body for further consideration (House or Senate).

Background: The House Intellectual Property Subcommittee today approved H.R. 5889, the Orphan Works Act of 2008. Orphan works are works, such as photographs, music or film, or other works for which the copyright holder can’t be found by someone who wants to use the work in a way that normally would require permission. Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found.

The following statement is attributed to Gigi B. Sohn, president and co-founder of Public Knowledge:

[CLICK HERE TO WRITE YOUR LETTER NOW][repform]

The House and Senate both introduced new legislation to allow for greater use of so-called “orphan works” — books, music, photos, movies or other works whose owners can’t be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.

Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.

The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table — S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) — go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.

These Bills are being considered in there respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.

Earlier today, the House Judiciary Committee approved HR 4279, the Pro-IP bill, which would increase penalties for violations of intellectual property laws, among other items.

The following is the statement of Gigi B. Sohn, president and co-founder of Public Knowledge:

“We are pleased that the Committee amended the bill (HR 4279) to make clear there has to be a ‘substantial connection’ between property to be seized, such as a computer, a car or a house, and any violations of the copyright law. Now that the Committee has approved the bill, we look forward to legislative action on Orphan Works legislation, (HR 5889), that would work to restore balance in copyright law.”

Contacts:

• Art Brodsky (PK): 202-518-0020 (o) 301-908-7715 (c) abrodsky@publicknowledge.org
• Tania Panczyk-Collins (APTS): 202-654-4222 (o) 773-220-9513 (c) tpanczyk@apts.org

Public Knowledge, the Internet Archive, Association of Public Television Stations and the Association of Research Libraries joined today to praise the work of Senate and House legislators for introducing legislation that would allow for greater use of “orphan works.” Those are books, music, photos or other works for which the copyright holder can’t be found by someone who wants to use the work in a way that normally would require permission.

Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found. The U.S. Copyright Office found in January, 2006 that that the “orphan works problem is real and warrants attention.”

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and former panel Chairman Orrin Hatch (R-UT) introduced the Senate’s version, S. 2913. House Intellectual Property Subcommittee Chairman Howard Berman (D-CA), introduced his chamber’s bill with Judiciary Committee Chairman John Conyers, Jr. (D-MI), senior Committee Republican Lamar Smith (R-TX) and ranking Subcommittee member Howard Coble (R-NC).

Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It’s been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.

Title: A bill to provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

The full text of this bill is available on Thomas.

Title: To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

The full text of this bill is available on Thomas.