Wednesday, July 30, 2008

Senate Bill on Hold

We've just received word that the Senate bill has been put "on hold." In fact, there appear to be multiple holds on it. Senators who "hold" hotlined bills do not have to identify themselves nor give their reasons for holding it. Holds are temporary. We don't know how many of you contacted your Senators on such short notice this afternoon, but many, many thanks to all of you who responded so rapidly.

Most people are unaware of the process called hotlining. In the past it was used to pass non-controversial legislation, but increasingly, it's being used to pass bills whose sponsors don't want to see debate. An excellent article in Roll Call explains the process. Here's an excerpt:

Senate conservatives are upset that the leaders of both parties in the chamber have in recent years increasingly used a practice known as "hotlining" bills - previously used to quickly move noncontroversial bills or simple procedural motions - to pass complex and often costly legislation, in some cases with little or no public debate. The increase was particularly noticeable just before the August recess, when leaders hotlined more than 150 bills, totaling millions of dollars in new spending, in a period of less than a week.

The practice has led to complaints from Members and watchdog groups alike that lawmakers are essentially signing off on legislation neither they nor their staff have ever read...

In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object - in some cases as little as 15 minutes. If no objection is registered, the bill is passed.

– From 'Hotlined' Bills Spark Concern
By John Stanton, Roll Call Staff
September 17, 2007
To read the full article, go to: http://tinyurl.com/3p8x2u

This is the second time the Senate Orphan Works bill has been hotlined this summer. The previous hotline came on June 5, the same week artists descended on Washington to urge lawmakers to oppose this controversial bill. The bill was put on hold that time too.

Since bills can be hotlined without prior notice, we'll all have to stay vigilant throughout the rest of this legislative session. Thanks again to all of you who responded so quickly.

Over 60 organizations, representing more than 250,000 creators, are united in opposing these bills in their current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.
Read the list:

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

Orphan Works Bill Hotlined

This means it could pass the Senate this afternoon.
Please call your Senators immediately.

Ask them to put a "hold" on the bill:
S2913 THE SHAWN BENTLEY ORPHAN WORKS ACT OF 2008

Tell them you oppose this controversial bill.
Ask them not to pass it without a full and open hearing.
Warn them that it will do great harm to small businesses.

To find your Senators' phone numbers go to the Illustrators' Partnership Orphan Works site:

http://capwiz.com/illustratorspartnership/home/

At the top of the home page, click on "Elected Officials"
You'll find a US map:
Click on your state,
Then "Senators,"
Then click on each Senator's name,
Then click "Contact."
This will give you their phone numbers.

Please phone and fax them both.
Please call everyone you know who is an interested party and tell them we must act immediately to prevent passage of this bill.

Wednesday, July 23, 2008

More Groups Condemn Controversial Orphan Works Bills

The California Copyright Conference and the Association of Independent Music Publishers have announced a joint position paper condemning the Orphan Works bills. In a five page paper they conclude: “The Orphan Works bills are deeply flawed and would have serious unintended but far reaching adverse effects.”

“The final report is the result of a collaborative effort from a panel of distinguished experts who bring together differing viewpoints on copyright matters,” says Cheryl Hodgson, current President of the California Copyright Conference (CCC). “The unanimity of the voice with which they have chosen to speak underscores the reason all copyright owners should read and understand the issues.”

These bills “threaten to erode fundamental protections for copyright authors and owners,”
the paper begins. The bills will “encourage copyright infringement and objectionable uses across the full spectrum of protected artistic works”:

In the process of “helping” appropriate other people's personal property, the legislation promotes the incremental dismantling of one of our nation's primary economic growth engines. The Internet, computer and consumer electronics industries utilize vast amounts of copyrighted works to attract customers to their websites, from which they derive enormous profits from advertising and subscription fees, These industries have long sought to eliminate copyright protections and to avoid paying for the content they use to lure consumers.

“The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years,” says attorney Steve Winogradsky, past President of both the California Copyright Conference and the Association of Independent Music Publishers (AIMP). “It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster.”

View Report http://www.brandaideblog.com/pdf/Position_Statement.pdf

More than 60 groups representing illustrators, photographers, musicians and writers now openly oppose this controversial revision of US copyright law. Over 112,000 letters have been sent to lawmakers from the Illustrators Partnership advocacy site.


Don't Let Congress Orphan Your Work
Write Congress and fight for your copyrights

Tell the House Judiciary Committee members not to support this controversial revision of copyright law. Send this e-mail message now: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11618481

Tuesday, July 15, 2008

Orphan Works Update July 15

The Orphan Works Mark-up for this week has been postponed. This gives us more time to email and fax members of the House Judiciary Committee. Write and ask them to support the amendments submitted jointly by the Illustrators' Partnership, the Artists Rights Society and the Advertising Photographers of America.

http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

These amendments would:
• Insure that the bill will only affect true orphaned work;
• Insure that the bill will not violate international trade agreements;
• Insure that the bill will not take effect until a market impact survey concludes it will not harm existing commercial markets.
Otherwise, ask them not to vote this bill out of committee until Congress can hold proper hearings into the harm it will do to small businesses, individual creators and ordinary citizens.

Our sample letter to House Judiciary Committee members can be deep linked here: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11618481

Contact information for House Judiciary Committee members can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/house-judiciary-committee-contact-list.html

View the Orphan Works Forum Webcast from the Society of Illustrators:
http://www.unitedpgremote.com/society/soi_2008_05_04.html

Monday, July 14, 2008


Sunday, July 13, 2008

Orphan Works Markup

We've had word that the House Judiciary Committee may mark-up the Orphan Works Bill this week. This is the session where Committee Members will propose, accept and reject amendments to H.R. 5889. After markup, the bill could be reported out of the House Committee and go to the floor for a vote.

We've submitted several critical amendments for consideration: These would limit the scope of the bill to affect only true orphaned work. Unless such amendments are adopted, we believe the bill should not be reported out until its impact on small businesses can be determined. Here's our summary of the issues at stake in the House version of this bill:

Q What is the Orphan Works Act?
A: A proposed amendment to copyright law that would impose a radically new business model on the licensing of copyrighted work.

Q: How would it do that?
A: It would force all creators to digitize their life's work and hand it over to privately-owned commercial databases or see it exposed to widespread infringement by anyone, for any purpose, however commercial or distasteful.

Q: How would it hurt me if I didn't register my work?
A: The bill would let infringers rely on for-profit registries to search for your work. If your work is not in the databases, it's a potential "orphan."

Q: What about my unpublished work?
A: The bill would apply to any work, from professional paintings to family snapshots, home videos, etc., including published and unpublished work and any work ever placed on the internet.

Q: How would these databases work?
A: No one has yet unveiled a business plan, but we suspect they'd operate like stock houses, promoting themselves as one-stop shopping centers for licensing art. If you've registered your work with them, they'll probably charge you maintenance fees and commissions for clearing your work. If you're a publisher or art director, they'll probably charge you search fees. If you're an infringer, they'll probably charge you a search fee and issue orphan certificates for any unregistered work you'd like to infringe. We assume different registries may have different terms, and any start-up terms will of course be subject to change.

Q: How will the bill affect the market for commissioned work?
A: It will be a gold mine for opportunists, favoring giant image banks over working artists. Some companies will probably sell access to orphans as royalty-free work -- or they'll harvest orphans and bundle them for sale as clip art. Other companies can harvest orphans, alter them slightly to make "derivative works" and register the derivatives as their own copyrighted product. Freelancers would then be forced to compete against their own lost art - and that of their colleagues - for the new commissions they need to make a living.

Q: But the bill's sponsors say the bill is just a small adjustment to copyright law.
A: No, it's actually a reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your legal obligation to make your work available.

Q: But isn't the House bill an improvement over the Senate version?
A: Only for those who intend to operate commercial databases. These registries will exist to make money. To make money, they'll have to do a lively business in clearing work for infringements. That means making their databases infringer-friendly.

Q: But isn't the House bill better because it requires an infringer to file a Notice of Use, documenting their intent to infringe?
A: The House bill creates a very low threshold for infringers to meet. They'd only have to file a text description (not the image itself) of the work they want to infringe, plus information about their search and any ownership information they've found.

Q: But won't that let artists consult the archive to see if their work has been infringed?
A: No, as currently written, the Notice of Use is a dark archive, which means you won't have access to it. If someone infringes your work and has filed a Notice of Use, you wouldn't know about it.

Q: Then how would I know if my work is in the Dark Archive?
A: You wouldn't, unless a.) you discover you've been infringed; b.) you sue the infringer in federal court; c.) the infringer asserts an Orphan Works defense. Then you can file a request to see if the infringer has filed a Notice of Use to infringe your work.

Q: Then what good does it do me for the infringer to file a Notice of Use?
A: It's of no probative value to you at all unless you go to court. And if you do, you'd better be sure of winning because otherwise, without the possibility of statutory damages and attorneys' fees, it will be too expensive for you to sue. If the Notice of Use helps anyone, it actually helps the infringer: it lets him prove in court that he followed the prescribed protocol to "legally" infringe your work.

Q: Then shouldn't we ask Congress to change the Dark Archive to an open one?
A: This would still place an impossible burden on you. Can you imagine routinely slogging through a "lost and found" containing millions of text descriptions of works to see if something sounds like one of the hundreds or thousands of illustrations you may have done?

Q: So should the infringement archive be changed to display images rather than text descriptions?
A: If so, you'd have a come-and-get-it archive for new infringers to exploit works that have already been identified as orphans by previous infringers.

Q: The bill's sponsors say the House version includes specific instructions on the requirements for diligent searches.
A: No, read the bill. It's full of ambiguous terms like "reasonable" and "diligent" that can only be decided by courts on a case-by-case basis. That could take a decade of expensive lawsuits and appeals. How many millions of copyrights will be orphaned before we learn how the courts ultimately define these vague terms?

Q: Then what can we do to improve this bill?
A: We don't believe the bill can be patched up to mitigate its harm to creators. The Orphan Works matter should be solved with carefully defined expansions of fair use to permit reproduction by libraries and archives, or for family photo restoration and duplication. Narrow exceptions like these would also meet the needs of other orphan works usage without violating artists' rights as defined by the 1976 Copyright Act, The Berne Convention and Article 13 of the TRIPs Agreement. These copyright-related international trade treaties are not just a matter of law. They codify longstanding business practices that have passed the test of time.

Q: What can we do now to oppose this legislation?
A: If you're opposed to the House bill in its current form, contact members of the full House Judiciary Committee. Ask them to adopt our amendments limiting the scope of the bill to affect only true orphaned work. Tomorrow, we'll email you a short basic letter which you may use as a template.

--Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership

Over 60 organizations are united in opposing this bill in its current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Don't Let Congress Orphan Your Work
To use the Orphan Works Opposition Website just go to this link:
http://capwiz.com/illustratorspartnership/home/

Put in your zip code and follow the instructions. Your letters will be addressed and sent automatically. It takes less than 2 minutes to fight for your copyrights.

Letter for House Judiciary Committee Members

Dear Honorable ______________,

As an artist and a small business owner, I’m writing to oppose H.R. 5889, the Orphan Works Act of 2008 as currently drafted. Please support the amendments submitted jointly by the Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America.

Otherwise, please do not vote this bill out of committee until Congress can hold proper hearings into the harm it will do to small businesses, individual creators and ordinary citizens.

While I support a bill that would give libraries and museums a legitimate expansion of fair use, H.R. 5889 is far too broad. It would cause trillions of dollars of private property to be transferred into the control of a few corporate databases with no guarantee as to how these assets will be protected, used or abused. It will undermine the passive copyright protection that all citizens now enjoy – and that threatens individual creativity, freedom of expression and the right to privacy embodied in copyright law.

There is no reason for the reckless scope of this bill. It is based on a Copyright Office study of orphaned work. Yet it will permit the infringement of contemporary work by creators working in today’s commercial markets - a subject the Copyright Office never studied. Its stated purpose is to let libraries and museums digitize their collections and let ordinary folks duplicate family photos. But these modest goals can be met with a modest expansion of Fair Use. I do not believe citizens should have to hand over their personal intellectual property to a few corporate special interests. The unintended consequences of this bill could be a rights grab of monumental proportions.

Please look behind the talking points of the special interests promoting the Orphan Works Act. Do not support a major revision of copyright law without an open, informed and transparent public debate.

Sincerely,
_____________________

Saturday, July 12, 2008

House Judiciary Committee Contact List

Democrats

(D) Michigan, 14th
Honorable John Conyers, Jr., Chairman
2426 Rayburn House Office Building,
District of Columbia 20515-2214
Phone: (202) 225-5126
Fax: (202) 225-0072


(D) Florida, 20th
Honorable Debbie Wasserman Schultz
118 Cannon House Office Building,
District of Columbia 20515-0920
Phone: (202) 225-7931
Fax: (202) 226-2052


(D) Florida, 19th
Honorable Robert Wexler
2241 Rayburn House Office Building,
District of Columbia 20515-0919
Phone: (202) 225-3001
Fax: (202) 225-5974


(D) California, 28th
Honorable Howard L. Berman
2221 Rayburn House Office Building,
District of Columbia 20515-0528
Phone: (202) 225-4695
Fax: (202) 225-3196


(D) Virginia, 9th
Honorable Rick Boucher
2187 Rayburn House Office Building,
District of Columbia 20515-4609
Phone: (202) 225-3861
Fax: (202) 225-0442


(D) New York, 8th
Honorable Jerrold Nadler
2334 Rayburn House Office Building,
District of Columbia 20515-3208
Phone: (202) 225-5635
Fax: (202) 225-6923


(D) Virginia, 3rd
Honorable Robert C. Scott
1201 Longworth House Office Building,
District of Columbia 20515-4603
Phone: (202) 225-8351
Fax: (202) 225-8354


(D) North Carolina, 12th
Honorable Melvin L. Watt
2236 Rayburn House Office Building,
District of Columbia 20515-3312
Phone: (202) 225-1510
Fax: (202) 225-1512


(D) California, 16th
Honorable Zoe Lofgren
102 Cannon House Office Building,
District of Columbia 20515-0516
Phone: (202) 225-3072
Fax: (202) 225-3336


(D) Texas, 18th
Honorable Sheila Jackson Lee
2435 Rayburn House Office Building,
District of Columbia 20515-4318
Phone: (202) 225-3816
Fax: (202) 225-3317


(D) California, 35th
Honorable Maxine Waters
2344 Rayburn House Office Building,
District of Columbia 20515-0535
Phone: (202) 225-2201
Fax: (202) 225-7854


(D) Massachusetts, 10th
Honorable William D. Delahunt
2454 Rayburn House Office Building,
District of Columbia 20515-2110
Phone: (202) 225-3111
Fax: (202) 225-5658


(D) California, 39th
Honorable Linda T. Sanchez
1222 Longworth House Office Building,
District of Columbia 20515-0539
Phone: (202) 225-6676
Fax: (202) 226-1012


(D) Tennessee, 9th
Honorable Steve Cohen
1004 Longworth House Office Building,
District of Columbia 20515-4209
Phone: (202) 225-3265
Fax: (202) 225-5663


(D) Georgia, 4th
Honorable Hank Johnson
1133 Longworth House Office Building,
District of Columbia 20515-1004
Phone: (202) 225-1605
Fax: (202) 226-0691


(D) Ohio, 13th
Honorable Betty Sutton
1721 Longworth House Office Building,
District of Columbia 20515-3513
Phone: (202) 225-3401
Fax: (202) 225-2266


(D) Illinois, 4th
Honorable Luis Gutierrez
2266 Rayburn House Office Building,
District of Columbia 20515-1304
Phone: (202) 225-8203
Fax: (202) 225-7810


(D) California, 27th
Honorable Brad Sherman
2242 Rayburn House Office Building,
District of Columbia 20515-0527
Phone: (202) 225-5911
Fax: (202) 225-5879


(D) Wisconsin, 2nd
Honorable Tammy Baldwin
2446 Rayburn House Office Building,
District of Columbia 20515-4902
Phone: (202) 225-2906
Fax: (202) 225-6942


(D) New York, 9th
Honorable Anthony Weiner
1122 Longworth House Office Building,
District of Columbia 20515-3209
Phone: (202) 225-6616
Fax: (202) 226-7253


(D) California, 29th
Honorable Adam Schiff
326 Cannon House Office Building,
District of Columbia 20515-0529
Phone: (202) 225-4176
Fax: (202) 225-5828


(D) Alabama, 7th
Honorable Artur Davis
208 Cannon House Office Building,
District of Columbia 20515-0107
Phone: (202) 225-2665
Fax: (202) 226-9567


(D) Minnesota, 5th
Honorable Keith Ellison
1130 Longworth House Office Building,
District of Columbia 20515-2305
Phone: (202) 225-4755
Fax: (202) 225-4886



Republicans

(R) Texas, 21st
Honorable Lamar S. Smith, Ranking Member
2184 Rayburn House Office Building
Washington, DC 20515
Phone: (202) 225-4236
Fax: (202) 225-8628


(R) Wisconsin 5th
Honorable F. James Sensenbrenner, Jr.
2449 Rayburn House Office Building
Washington, D.C. 20515-4905
Phone: (202) 225-5101
Fax: (202) 225-3190


(R) North Carolina, 6th
Honorable Howard Coble
2468 Rayburn House Office Building
Washington, D.C. 20515-3306
Phone: (202) 225-3065
Fax: (202) 225-8611


(R) California, 24th
Honorable Elton Gallegly
2309 Rayburn House Office Building
Washington, D.C. 20515-0524
Phone: (202) 225-5811
Fax: (202) 225-1100


(R) Virginia, 6th
Honorable Bob Goodlatte
Washington Office:
2240 Rayburn House Office Building
Washington, D.C. 20515-4606
Phone: (202) 225-5431
Fax: (202) 225-9681


(R) Ohio, 1st
Honorable Steve Chabot
129 Cannon House Office Building
Washington, D.C. 20515-3501
Phone: (202) 225-2216
Fax: (202) 225-3012


(R) California, 3rd
Honorable Daniel E. Lungren
2448 Rayburn House Office Building
Washington, D.C. 20515-0503
Phone: (202) 225-5716
Fax: (202) 226-1298


(R) Utah, 3rd
Honorable Chris Cannon
2436 Rayburn House Office Building
Washington, D.C. 20515-4403
Phone: (202) 225-7751
Fax: (202) 225-5629


(R) Florida, 8th
Honorable Ric Keller
419 Cannon House Office Building
Washington, D.C. 20515-0908
Phone: (202) 225-2176
Fax: (202) 225-0999


(R) California, 49th
Honorable Darrell E. Issa
211 Cannon House Office Building
Washington, D.C. 20515-0549
Phone: (202) 225-3906
Fax: (202) 225-3303


(R) Indiana, 6th
Honorable Mike Pence
1317 Longworth House Office Building
Washington, D.C. 20515-1406
Phone: (202) 225-3021
Fax: (202) 225-3382


(R) Virginia, 4th
Honorable J. Randy Forbes
307 Cannon House Office Building
Washington, D.C. 20515-4604
Phone: (202) 225-6365
Fax: (202) 226-1170


(R) Iowa, 5th
Honorable Steve King
1609 Longworth House Office Building
Washington, D.C. 20515-1505
Phone: (202) 225-4426
Fax: (202) 225-3193


(R) Florida, 24th
Honorable Tom Feeney
323 Cannon House Office Building
Washington, D.C. 20515-0924
Phone: (202) 225-2706
Fax: (202) 226-6299


(R) Arizona, 2nd
Honorable Trent Franks
1237 Longworth House Office Building
Washington, D.C. 20515-0302
Phone: (202) 225-4576
Fax: (202) 225-6328


(R) Texas, 1st
Honorable Louie Gohmert
510 Cannon House Office Building
Washington, D.C. 20515-4301
Phone: (202) 225-3035
Fax: (202) 226-1230


(R) Ohio, 4th
Honorable Jim Jordan
515 Cannon House Office Building
Washington, D.C. 20515-3504
Phone: (202) 225-2676
Fax: (202) 226-0577

Friday, July 11, 2008

H.R. 5889 Amendments


Introduction

As rights holders, we can summarize our hopes for the Orphan Works Act simply: to see that it becomes a true orphan works bill, with no unnecessary spillover effect to damage the everyday commercial activities of working artists. We’d be happy to work with Congress to accomplish this. No legislation regarding the use of private property should be considered without the active participation of those whose property is at stake.

On June 5, 2008 the European Union announced an orphan works regime that would permit European libraries, museums and archives to digitize their collections of orphaned work. We believe a bill of similar specificity in the U.S. would not only solve the problems confronting libraries and archives here, it would harmonize U.S. policy with our trading partners.

We believe this could be accomplished by a precise expansion of
USC, Title 17, § 108: Limitations on exclusive rights: Reproduction by libraries and archives. Unlike the present bill, which covers all works for any use by creating a new, all-encompassing § 514: Limitation on Remedies, this approach - a precise expansion of Fair Use - would not lead to the widespread violation of exclusive rights under the 1976 Copyright Act, Article 9 of the Berne Convention and Article 13 of TRIPS. We believe similar orphan works situations - family photo restoration and duplication, personal genealogy usage of orphan works, and orphan works rights clearance for documentary filmmakers – can all be resolved in a similar manner, by carefully and precisely expanding Fair Use: USC, Title 17, § 107: Limitations on exclusive rights.

We note that a current law already exists to limit statutory damages to not less than $200 for “orphan works” infringements by an employee or agent of a nonprofit educational institution, library, archive or public broadcasting entity acting within the scope of his or her employment. See
USC, Title 17, § 504 (c) 2 (i) and (ii): Remedies for infringement: Damages and profits.

With this specific exemption already on the books, we believe similar solutions could be arrived at amicably by working with members of the creative community who are familiar with how copyright law intersects with standard business practice. This kind of imaginative solution should win widespread praise from all parties, while preserving the sanctity of existing copyright-related contracts. It would protect the small businesses that are the heart and soul of the creative community and would continue to act as an on-going incentive to further the creation of new work.
______________________________________

Suggested Amendments to H.R. 5889

The Orphan Works Act of 2008

Submitted on Behalf of
The Illustrators’ Partnership of America
Artists Rights Society
Advertising Photographers of America

to the
Committee on the Judiciary
U.S. House of Representatives

by
Brad Holland, Co-Founder & Director and Cynthia Turner, Director
Illustrators’ Partnership of America

Dr. Theodore Feder, President
Artists Rights Society

Constance Evans, National Executive Director
Advertising Photographers of America

Amendments to H.R.5889
The Orphan Works Act of 2008



Amendment 1: Limitation on Scope of Use of Orphan Works and Qualifying Users of Orphan Works

This act shall only apply to the usage by the cultural heritage sector for the express purpose of digitization, online access, preservation, education and other noncommercial purposes of orphan works contained within the collections of not for profit libraries, archives or museums that have been accredited by a recognized national authority and approved by the Register of Copyrights.

Recommended as an amendment to USC, Title 17, § 108: Limitations on exclusive rights: Reproduction by libraries and archives. This amendment clarifies U.S. Orphan Works legislation to preserve and access cultural heritage, recognizing that in particular older material may include works whose rightsholders are not identifiable or, if they are identifiable, can no longer be located while emphasizing respect for copyright, exclusive rights, related rights and economic rights regarding the use of orphan works. It emphasizes the need for adequate certainty when cultural institutions deal with orphan works, with respect to their digitization and online accessibility within the framework of the libraries, museums and archives for the lawful use of orphan works. It harmonizes S. 2913 with the June 4, 2008 i2010 European Union Digital Libraries Initiative: Agreement between Cultural Institutions and Rightsholders on Orphan Works. It preserves contemporary commercial markets and the exclusive rights of contemporary creators who are alive, in business and managing their copyrights by “confining limitations and exceptions to exclusive rights to certain special cases, which do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the rights holder” in accordance with the TRIP’s 3-Step test. It makes S.2913 compliant with the Berne Convention for the Protection of Literary and Artistic Works and its prohibition on registries.

Amendment 2: Parity for Visual Artists and Textile Designers

(Version 1) On Page 14, line 23, after “in or on a useful article” and before “that is offered for sale or other distribution to the public” insert: “or, in the case of a work of visual art, in or as part of a collective work,”.

(Version 2) On page 14, line 14, after “in or on a useful article” and before “that is offered for sale or other distribution to the public” insert “or in the case of a work of visual art, in or as part of a collective work or standing alone.” (Underlining is provided for the purpose of highlighting the differences with version one.)

This amendment extends to illustrators and other creators of visual images the same protection afforded by the bill to authors of designs – such as textile designs – that are included in other works. Version one is limited to works of art that are included in another – larger work – and, therefore is most parallel to the provision regarding works that are included in useful articles. Version 2 expands the amendment to include free standing works, such as works of fine art that often are included in collective works following their creation.


Amendment 3: The Copyright Office is Best Able to Maintain the Database

On page 15, lines 15 and 16 delete “undertake a certification process for the establishment of” and insert “create”.

On page 15, delete lines 20 through 25, and insert the following:

“(2) STANDARDS FOR THE COPYRIGHT OFFICE DATABASE – The electronic database created pursuant to subsection (a) (1) of this section shall contain – ”

On page 17, delete all after “shall” on line 11 through line 22 and insert “not take effect until the Copyright Office has made available to the public, online and at no cost to authors, the database created pursuant to subsection (a) (1) of Section 3.

This amendment requires the Copyright Office to create a publicly searchable electronic database of works of visual art that can serve as a basis for conducting searches involving such works under this bill. The Copyright Office and the Library of Congress are more capable of creating such a database than any private sector organization due to the fact that the copies of all visual images that have been registered with the Copyright Office already are archived in the Library of Congress and the Library is in the process of digitizing these images through its “digital library” project. This leverages the existing registration system to support the objectives of this bill and relieves visual artists – who are in almost all cases individuals with limited financial resources – of any requirement to establish the means to protect themselves against infringement of their works.


Amendment 4: The Act Should Not Violate U.S. Treaty Obligations with Respect to Article 5 (2) of the Berne Convention on Literary and Artistic Works Prohibiting Registration for Foreign Works

On page 20, after line 19, insert the following new section:

“SEC. 8. Relationship to Foreign Works Protected Under the Berne Convention on Literary and Artistic Works.

This Act shall not apply to works of foreign authors.”

Article 5 (2) of the Berne Convention on Literary and Artistic Works provides that “The exercise of their (authors’) rights shall not be subject to any formality.” Compliance with this provision is required of all countries, including the United States that adhere to the TRIPS Agreement under Article 9 of that treaty. By requiring that all copyright holders must register their works in electronic databases as a condition of protection against infringement as orphan works H.R. 5889 violates these treaty obligations prohibiting the imposition of formalities on non-U.S. nationals as a pre-condition to enforcement of their copyrights. The Copyright Act currently requires that works created by U. S. domiciliaries be registered with the Copyright Office and accompanying copies be deposited with the Library of Congress as a pre-condition to bringing an infringement action in a Federal Court. Also, in the case of U.S. domiciliaries registration prior to infringement is a condition of the right to receive statutory damages. Both of these provisions are limited to U.S. –based authors only because to do otherwise would violate Berne Article 5 (2) and TRIPS Article 9. A similar limitation to U.S. domiciliaries is necessary with regard to this legislation to avoid violating the international treaties.


Amendment 5: The Act Should Not Violate U.S. Treaty Obligations Under Article 13 of the TRIPS Agreement relating to Limitations and Exceptions

On page 17, delete all after “shall” on line 11 through line 22 and insert “not take effect until the Register of Copyrights, the Secretary of Commerce and the United States Trade Representative have certified in a joint communication to the President of the Senate and the Speaker of the House of Representatives that this Act does not violate Article 13, regarding limitations and exceptions, of the Agreement on Trade Related Aspects of Intellectual Property Rights.

This amendment assures that this legislation would not violate U.S. treaty obligations with regard to works of visual art under the three step test required of any exceptions and limitations to exclusive rights of copyright owners under Article 13 of the TRIPS Agreement. That Article requires that legislation passed by any signatory state “shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” (emphasis supplied.) Failure to meet the requirements of TRIPS Article 13 would expose the United States to claims of unfair trading practices under the WTO Treaty and expose U.S. industry to retaliatory actions by signatories to the WTO Treaty and the TRIPS Agreement.


Amendment 6: Impact on Small Business Entities

On page 17, delete all after “shall” on line 11 through line 22 and insert “not take effect until the Small Business Administration has certified in a joint communication to the President of the Senate and Speaker of the House of Representatives that individuals and small businesses will effectively be able to prevent through their own due diligence and at reasonable cost their works from becoming orphaned by complying with the provisions of this Act.”

The bill contemplates a system of private registries that must be used by copyright owners to provide a means of searching for ownership information regarding their works. If an artist or other copyright owner fails to use the services of one of these registries an infringer who uses such a registry to meet the “reasonable search” obligation will be able to do so with no possibility of locating the rights holder. In such a situation the rights holder’s work will automatically be orphaned. The cost and complexity of using the services of these private – presumably for-profit – registries is unknown. However, the Copyright Office has testified that that the cost and complexity of its maintaining such a registry is to great for it to manage. The Copyright Office has taken this position even though it operates on a budget of over $300 million and already maintains a digitized database of the works registered with it and the Library of Congress maintains an archive of deposits of best copies that must accompany copyright registration. All visual artists are small businesses or sole proprietorships. Before placing a financial and administrative burden on them that they may not be able to meet, the Congress should have the advice of the government agency responsible for the well being of such small businesses and sole proprietorships.


Amendments 7: “Best Practices”

On page 8, line 17 delete “(ii) and insert (iii).

On page 8, after line 16 insert the following new subsection (B) (ii):

“(ii) BEST PRACTICES. – The best practices maintained by the Register of Copyrights shall:

(1) include only practices recommended either by authors or organizations representing solely authors of the class of works addressed by the best practices;

(2) require use of existing identification systems, including all databases currently maintained by the Library of Congress;

(3) include the name or names of any identifiable person including the publisher, distributor, artist, designer, and art director associated with the work or the use of the work;

(4) may not include best practices recommended by non rights holders or any other databases owned, maintained, or financed directly or indirectly by infringers.

On page 17 delete all after “section 2” through line 22 and insert: “shall take effect only after the date on which the Copyright Office certifies best practices under section 3.”

This amendment provides that the “best practices” that are adopted for databases of works be established by those who know those works the best – the class of authors that has created them. Especially in the case of the visual arts, it is the artists themselves who best understand how to create a workable database. In any event infringers should not be in the position of creating the system that immunizes them from liability for their violation of the copyright law. To do otherwise would be putting the fox in charge of the chicken coop.


Amendment 8: Safe Harbor for Not for Profit Institutions

On page 10, delete all after “if the infringer is” on lines 21 and 21 through line 23 and insert “a not for profit library, archive or museum accredited by a recognized national authority and approved by the Register of Copyrights and the infringer has not used the infringed work for any purpose of direct or indirect commercial advantage such as marketing, promotion of brands, products or services.

This amendment is directed at that provision of the Act that provides a safe harbor that virtually immunizes the infringer from any meaningful liability provided that that infringer is a non profit archive, library or museum. This undoubtedly is directed at institutions such as the National Holocaust Museum, whose representative has testified at hearings that lead to the bill’s introduction. Visual artists recognize the special circumstances associated with such non profit libraries, museums and archives. This amendment will assure that only institutions that legitimately fall into this category receive the benefits of the safe harbor. And, it would assure that such institutions do not unfairly use the safe harbor to compete commercially against the very creators whose works they are dedicated to preserving. Commercial exploitation does not deserve a sweeping safe harbor.

This amendment also removes nonprofit educational institutions from safe harbor infringement protection to prevent the special harm that will be exerted on medical education and the advancement of science. Medical illustrators create critically accurate visualizations for nonprofit organizations, universities and research foundations. § 107 already generously covers scholarship. Any other use by non-profits needs to be licensed according to existing copyright law and protect an artist's exclusive rights, regardless of whether the orphan work user’s use involves a direct or indirect commercial advantage. Adding a new provision that essentially performs the same function as fair use under § 107 may erode that body of established law, while providing no more certainty than applying § 107 and its related case law to the other provisions of the Act.



Amendment 9: Review by the Department of Justice on the Impact on the Judiciary and the Need for a Small Claims Court

On page 17, delete all after “shall” on line 11 through line 22 and insert “not take effect until the Department of Justice has certified in a joint communication to the President of the Senate and Speaker of the House of Representatives that the relief provided under the bill will not be less in most cases than the legal costs – including attorneys’ fees, court costs, and costs of discovery – necessary for a plaintiff effectively to litigate an action for infringement in a United States District Court. The certification by the Department of Justice also shall advise Congress on the impact of the Act on the federal court system and whether an alternative system of administrative litigation should be substituted for the existing system of remedies for copyright infringement.”

On page 16 through page 18 delete lines 16 through18 and renumber Sec. 7 as Sec. 6.

Section 6 of the bill recognizes that the remedies afforded rights holders by the bill may not be sufficient to support effective enforcement under the current system of infringement litigation in United States District Courts. However, the bill gives the Register of Copyrights the mandate to study this issue and report to Congress on the advisability of a different system of litigation. This is an issue that is within the authority and expertise of the Department of Justice, not the Copyright Office. This amendment gives responsibility for advising Congress on matters relating to the federal court system to the Department of Justice, not the Copyright Office. Further, given the acknowledgment inherent in the study authorized by Section 6 that there is a serious possibility that the judicial remedies provided by the bill will be too expensive for rights holders in relation to the damage awards they will receive, the bill should not go into effect until the Congress has had the expert opinion of the Department of Justice.


Amendment 10: Sunshine for the Notice of Use Archive

On page 9, line 2, after “shall create and maintain an archive” insert “that is publicly accessible without charge through the Internet”.

On Page 9, line 7, before “(A)” insert “Part I”

On page 9, line 21, after “used” insert:

“(G) a best edition copy of the image to be infringed from a commercially available, non-infringing publication or other source;

(H) a precise list of the infringing uses, including the print run, number of copies, geographic of any work that includes the infringed work, and the media such as print, Internet, or broadcast in which the infringed work is being distributed;

(I) the legal name of the infringer and all those associated with the diligent search and the proposed use, such as employers, institutions or corporate entities associated with the infringement;

(J) a working telephone number at which the infringer may be contacted that will be answered by the infringer;

(K) a unique identifying number for the infringing use issued and maintained by the Copyright Office;

(L) and, the Federal ID tax number, or social security number of the infringer or infringing entity.

Part II, to be completed within 30 days from the infringing use,

(M) a best edition copy of the infringing work.”

This amendment deals with the requirement of the bill that infringers file notice with the Copyright Office prior to infringement. If this requirement is to have any meaning the database of such notices must be easily available to rights holders so that they can effectively use it to make sure that their work is not classified as an orphan and that they can contact the infringer to be in a position to negotiate whether or not to license the work prior to infringement. This bill assures that rights holders will have the access they need to the notices filed with the Copyright Office and the information they need to contact and effectively negotiate with the entity desiring to use their works before that entity becomes an infringer.


Amendment 11: Modify Exclusion for Fixation in or on Useful Articles

On page 14, line 19, after “EXCLUSION FOR” AND BEFORE “FIXATIONS” insert “INFRINGEMENTS PROMOTING COMMERCIAL PRODUCTS OR SERVICES AND FOR”

On page 14, line 22, after “infringements” insert “promoting commercial products or services, or”

On page 14, line 23, after “useful article” and before “that is offered” insert “, or packaging or other media intended to promote such article,”

On page 14, end of line 24, after “public” and before “.” insert “, or where an infringer aggregates copies of orphan works and offers to distribute such copies of orphan works to other persons or organizations in exchange for compensation resulting from sale, subscription, licensing, advertising revenue or other means.”

This amendment expands the scope of the useful objects exclusion and prohibits the aggregation of orphan works for purposes of sale or distribution. The real need for use of orphan works for cultural heritage and preservation purposes does not in any way justify the commercial exploitation of orphan works.

Examples illustrating the primary basis for orphan works legislation invariably include (1) the Holocaust Museum’s inability to make use of photographs and letters in their collection, and (2) a family that has a photograph of a deceased relative, and is unable to contact the photographer, and thus unable to reproduce the image for personal usage. Other examples of course include libraries, archives and other similar organization seeking to use orphan works for cultural heritage or educational purposes, entirely legitimate examples illustrating the need for amending copyright law to allow for such uses. However, never is there an example such as “Advertising agency McCann Erickson could not use a photograph in its worldwide $20 million advertising campaign for Microsoft because they could not locate the photographer.”

Visual artists have a broad spectrum of tools at their disposal for marketing, distributing, and presenting their works for licensing across the global marketplace. For example, in the world of photography, photographers not only use their own websites, direct mail and email marketing campaigns to market their works and their services, but also use third party sites, commissioned agents, and publications expressly purposed for such use. In addition, photographers successfully market and distribute their work using stock agencies, where customers can search databases of millions of images, find an image to suit almost any purpose, supplied by any of tens of thousands of photographers, and purchase the right to use the image.

While the need for cultural heritage and preservation use of orphan works is clear, there is no reasonable justification for disrupting the marketplace for commercial usage of works by allowing the usage of orphan works for commercial purposes.

This amendment prohibits commercial services that could aggregate orphan works for sale to third parties. Such transactions would not be labeled as a “sale” or “license” but would likely be masked as subscription fees for qualifying searches. This would result in broad distribution of orphan works on a scale that would frustrate the attempt by any rights holder to secure reasonable compensation from third party users.


Amendment 12: Copyright in Derivative Works

On page 15, on line 10, after “103(a)” and before “an infringer” insert: “but subject to injunctive relief under subsection (c)(2),”

On page 15, line 13, after “copyrighted work” and before “shall not be denied” insert “to which the infringer contributes significant original expression, resulting in a derivative work or compilation, the infringer”

On page 15, at end of line 16 insert: “The infringer’s copyright protection in a derivative work based in whole or in part on a work infringed under this section shall not entitle the infringer to remedies under this Title in the event that the owner of the copyright in the infringed work infringes on such derivative work in the normal course of exploiting the owner’s copyright.”

This proposed amendment establishes a threshold of significant original expression, and ensures the consideration of the previous section regarding injunctive relief. The amendment also enjoins the infringer from copyright claims against the owner, in the event that the owner creates derivatives similar to the infringer’s derivative based on the owner’s work.

In the Bill the threshold for derivative works is very low. The contribution of any original expression to an orphan work results in a derivative, owned by the infringer. The derivative work, no longer an orphan, may be marketed, freely distributed and licensed to third parties by the infringer. Such use by the infringer of the derivative work may not only occur in direct competition with the owner of the orphan on which the derivative is based (without knowledge of the owner), but may otherwise cause market confusion, as competitors acquire and make use of each other’s works.

Thursday, July 10, 2008

"The Orphan Works Act of 2008" is not an Orphan Works Bill

We can summarize our hopes of this bill quite simply: we'd like to work with Congress to see that this bill becomes a true orphan works bill, with no unnecessary spillover effect that would damage the everyday commercial activities of contemporary working visual artists.

For example, on June 5, the EU announced a Memorandum of Understanding towards an orphan works regime that would permit European libraries, museums and archives to digitize their collections of orphaned work. We believe a bill of similar specificity in the U.S. would not only solve the problems confronting libraries and archives here, it would harmonize U.S. policy with our trading partners overseas and win wide praise from the creative community in the U.S., whose members would benefit from increased access to these works without seeing the rights of their own work put at risk.

We believe this could be accomplished by a precise expansion of USC, Title 17, § 108: Limitations on exclusive rights: Reproduction by libraries and archives. Unlike the present bill’s all-encompassing creation of a new § 514: Limitation on Remedies (which covers all works for any use), this approach would not lead to the widespread violation of exclusive rights under the 1976 Copyright Act, The Berne Convention and TRIPS. We believe similar orphan works situations - family photo restoration and duplication, personal genealogy usage of orphan works, and orphan works rights clearance for documentary filmmakers – can all be resolved in a similar manner, by carefully and precisely expanding Fair Use: USC, Title 17, § 107: Limitations on exclusive rights.

For example, family photo issues could be resolved with a simple contractual agreement: the person who wishes to duplicate or restore a photo of Grandma could sign an easy-to-understand agreement, (with either companies such as Walmart or with the photographer next door) stipulating that they've made a reasonably diligent search but failed to identify or locate the photographer of record and thereby qualify for a precise limited copyright exemption to restore or duplicate the work for home and/or family use only.

Under this scenario, should the photographer (or artist) of record subsequently come forward, the contract would define the specific remedies. The case of an individual who wishes to duplicate his or her own family photos would be even simpler to deal with: the individual would simply sign a form stipulating that he/she is the author and copyright holder of the work. Period. Any bad-faith assertions or violations of such agreements could then be dealt with as a contractual matter between individual parties, with no unnecessary damage to the rights of others.

We believe this kind of contractual solution to individual orphan works problems would create certainty by specifying the terms of each transaction and would, in fact, mirror the kind of indemnification that professional artists and photographers regularly supply to publishers and other clients, stipulating that our work is original and doesn't infringe the rights of others. It would have the additional virtue of requiring that only those who avail themselves of a right to infringe would be required to understand the law, unlike the present bill which would require every citizen to understand the risks and obligations inherent in the present bill.

Finally, we would like to note that a current law already exists to limit statutory damages to not less than $200 for “orphan works” infringements by an employee or agent of a nonprofit educational institution, library, archive or public broadcasting entity acting within the scope of his or her employment. See USC, Title 17, § 504 (c)2(i) and (ii): Remedies for infringement: Damages and profits.

With this specific exemption already on the books, we believe the kinds of solutions we’ve sketched in here could be arrived at amicably by working with members of the creative community who are familiar with how copyright law intersects with standard business practice. This kind of imaginative solution should win widespread praise from all parties, while preserving the sanctity of existing copyright-related contracts. It would protect the small businesses that are the heart and soul of the creative community and would continue to act as an on-going incentive to further the creation of new work.

The Illustrators' Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments to the House Judiciary Committee.

Wednesday, July 2, 2008

International Confederation Condemns U.S. Orphan Works Act

Last week, the International Council of Creators of Graphic, Plastic, and Photographic Arts (CIAGP) adopted the following resolution:

"Resolved that the artists rights societies of 31 countries, members of CIAGP, under the aegis of the International Confederation of Societies of Authors and Composers (CISAC), hereby expresses its condemnation of any effort by the United States Congress to legitimize and endorse an 'orphan works' regime, which would function to the great detriment of the creators of these works, and deprive them of their artists' rights."

The resolution was unanimously adopted during the international conference of CISAC. It was proposed by Dr. Ted Feder of the U.S., President of the Artists Rights Society http://arsny.com

CIAGP is the visual arts division of CISAC. CIAGP collectively acts for over 100,000 artists, photographers and illustrators through artists rights societies in 31 countries. CISAC works towards increased recognition and protection of creators' rights. Founded in 1926, CISAC is a non-profit organization headquartered in Paris.

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