by Brad Holland and Cynthia Turner
RE: Orphan Works Amendment to 1976 Copyright Act
The Orphan Works proposal would legalize the infringement of any work of art, regardless of age, country of origin, published or unpublished, where the rights holder cannot be identified or located. This would affect illustrations and photographs disproportionately because images are commonly published without identifying information, signatures may be illegible and information can be removed by others. By exposing to infringement any work that cannot be sourced by “reasonable effort,” the OW amendment risks orphaning millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works.
The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project. When Congressmen wrote the 1976 Act, they considered the OW problem, but chose to leave it unresolved, citing “the near impossibility of distinguishing between types of works in fixing a statutory term.” That Congress erred on the side of protecting private property. Unless this Congress can devise a reliable test to distinguish true orphans, it will commit the greater error of encouraging potential users of art to unilaterally exploit — and possibly devalue - the self-created property of countless artists, both in the U.S. and abroad.
Many users responding to the OW Study have asserted that orphaned works have little or no commercial value. While this may be true of real orphaned work, it is not true of the numberless managed copyrights that will be caught in the orphan works net.
Non-profit organizations, which assert that only work of little or no commercial value will be affected, have not documented those assertions. Since non-profits typically offer rights holders little or no compensation for the work they solicit, government should not infer that such charitable donations by artists to non-profits reflect the commercial market value of the artists’ work. Users who wish to exploit work royalty-free have every incentive to minimize its value. Congress should not rely on their assertions as evidence that the work has little or no value in commercial markets. Value is based on quality and demand, not on genre or age.
The use of any work without the author’s permission violates the author’s exclusive right to permit or deny usage. Similarly, payment for use after the fact violates a basic principal of negotiation: An author whose work has already been exploited has no leverage to negotiate for a fee higher than the user is willing to pay. The Orphan Works amendment would act as a de facto compulsory license, which is nowhere acknowledged in the OW Report.
Artists have the right to maintain the value of their work by keeping it out of downscale or inappropriate markets. The OW amendment would violate that right by giving users the unilateral privilege of exploiting another’s property, regardless of the adverse effects this could have on the integrity or the value of the product.
Many artists in markets such as advertising and proprietary research enter into exclusive licensing arrangements with their clients. Because these artists are rarely permitted to sign and mark their work, this art would be subject to orphan status from its conception. This would destroy the artists’ ability to guarantee exclusivity to a client, undermine the value of the art itself and retroactively jeopardize existing contracts of exclusivity between artists and clients.
Currently, copyright law is enforced by the threat of substantial penalties for infringement. By “limiting” these remedies, the OW amendment invites abuse of the law. Without effective remedies for infringement, a user might find it a rational business decision to infringe first and pay “reasonable compensation” only if the infringement is detected.
While the OW Report is concerned exclusively with the difficulty a user may now have in locating an author, it does not address the difficulty an author may have under OW law in locating an infringer.
The OW amendment would place an impossible burden of diligence on rights holders, who will never have the resources to police infringement, which could occur anytime, anywhere in the world. We do not see how Congress can justify legislation that places an impossible burden on a property owner as a condition of protecting his property.
Because of the “limitation on remedies,” artists will never have the resources to go to court - as the OW amendment will require - to establish the case-by-case definition of a user’s “reasonable search.” This would constitute another impossible burden placed on rights holders and undermine any premise of fairness in the system.
The OW amendment will favor infringers by providing them with a no-fault defense. Since the infringer need only show that a good faith effort was made to identify or locate the artist of an unmarked image - the assertion that an artist’s signature was illegible may be good enough - a judge may be forced to uphold the majority of infringements, regardless of the ill effect it will have on the copyright holder and the value of his work.
Because every infringement of a managed copyright will create a family tree of potential successive infringements, samples of the infringed work will linger in the public domain even if a rights holder comes forward to stop the infringement. These orphans-of-orphans will be available to other would-be users, who would be justified by OW law in re-infringing the work. In this fashion, the effect of OW law would be viral.
A "take-down" of orphaned work posted online will be insufficient to restore its integrity. The Internet Archive, The Wayback Machine and Google Cache all provide access to defunct and removed web pages. These back-ups will allow falsely-designated orphans to remain in circulation, making it impossible for a rights holder to get back the rights to work unleashed into the public domain by the actions of others.
Because it would be retroactive, the OW amendment would betray artists, who for 28 years have published in the confidence that, even without formalities, their work enjoyed the basic protections guaranteed them by the 1976 Copyright Act. We do not think Congress should withdraw protections that have become settled expectations in the marketplace, especially as the remedies provided by the 1976 Act constitute the only enforcement mechanism artists now have for protecting their valuable copyrights.
Advocates of the OW amendment claim that copyright inhibits scholarship. But that was refuted by the authors of the 1976 Act:
“[I]t is important to realize that the  bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights. SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (Emphasis added)
The OW amendment in effect re-imposes formalities. By forcing the rights holder to rely on registries, metadata and notice as a condition of copyright protection it violates the letter and spirit of the Berne Convention.
The letter and spirit of Berne is addressed in this submission to the i2010 Digital Libraries project by the International Federation of Reproduction Rights Organizations (IFRRO):
“Digitisation is an act of reproduction subject to the authorisation of the copyright holder. On the basis of Article 5(2)(c) of the Directive 2 001/29, exceptions have been introduced in favour of libraries and archives that allow these institutions to reproduce works without prior consent of the rightsholders, mainly for preservation purposes. These exceptions do not cover and should not be extended to cover reproductions on a mass scale, which would clearly conflict with the normal exploitation of works and prejudice the legitimate interests of the copyright holders, and would thus not pass the three step test of the Berne Convention and Article 5.5 of the Directive200/l29 -p.2, (Spelling in the original, emphasis added).” http://www.ifrro.org/show.aspx?pageid=home
Professors Jane Ginsburg and Paul Goldstein have also warned that the Orphan Works provision must narrowly define the scope of the orphaned works or fail to meet the three-step test of TRIPS art. 13 and Article 5(2) of the Berne Convention:
“[T]he diversity of responses highlights the fundamental importance of precisely defining the category of "orphan" works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors' exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time.” 1., p. 1, OWR0107-Ginsburg-Goldstein (Emphasis added)
In the OW Report, the authors state:“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem (p.106).” Yet they acknowledge (p.95) that the Copyright Office lacks the resources to create and administer them. If Congress cannot allocate funds to create the kind of registry that the OW amendment will make “indispensable,” lawmakers should not be persuaded to impose that burden on rights holders as a condition of maintaining their copyrights. To do so will literally force artists to make their rights available to others at the risk of losing those rights by default.
At the Orphan Works roundtables, 7/26/05, Alexander MacGilivray of Google stated that “Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable” ( p.119). Also: “we expect that [Google’s] use of these orphan works will likely be in the 1 million works range...(p.166, emphasis added).” Since Google has already demonstrated their disregard for copyright by embarking on the Google Book Search project, there’s no reason to believe that they, or a similar firm, will not take advantage of the OW amendment to harvest images wherever artists and photographers can be characterized as “difficult or impossible to locate.” We do not believe that government should interfere with the free market exchange of goods and services by legislating a government-sanctioned royalty-free archive to compete with authors.
On page 14 of the OW Report, the authors write: “if our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (our emphasis).” With all due respect, we believe a solution cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders,” and interferes with the free market principles on which our cottage industry is based.
Last year, the Illustrators' Partnership submitted a defense of existing copyright law to the Orphan Works Study. It was signed by nearly 2,000 individual artists and endorsed by 42 organizations representing countless thousands of other artists from around the world. This was an unprecedented expression of international concern that the principles of the Berne convention be respected as the foundation of international copyright law. These principles have been built up over centuries and should not be legislated away in haste to conform to a debatable theory that the internet has changed the nature of creativity and the value of private property.
For all of the above reasons, we strongly urge reconsideration of the statutory language developed by the Copyright Office.
-Brad Holland and Cynthia Turner, for the Board and members of the Illustrators’ Partnership of America
© 2006 Brad Holland and Cynthia Turner
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