Orphan Works: A Lame Duck Countdown, Part I

Little Known Facts

Congress will reconvene for a lame duck session next week. That means Orphan Works backers may try again to pass their bill by suspending the rules. We believe this bill is too controversial to be passed by backroom dealing. It would let commercial interests harvest and monetize the personal property of ordinary citizens without their knowledge.

The bill can be improved, and we’ve offered amendments that would improve it. But there’s not enough time to improve it during a lame duck session. The bill should be held over until the next session of Congress, when those whose livelihood it will threaten can have the opportunity to present their case.

Over the next few days, we’ll highlight some little known facts about the way this bill has been conceived, drafted and promoted. We believe these facts raise serious questions about the legislative process that has brought this legislation to the brink of passage:

1. The “legislative blueprint” for the Orphan Works bill was not the result of the Copyright Office’s year-long Orphan Works Study. It was drafted before the study began, by law students who made no apparent effort to survey its potential impact on commercial markets.

2. The blueprint was drafted under the guidance of a legal scholar who opposes current copyright protections. He has written that authors in the internet age “may not need the long, intense protection afforded by conventional copyright -- no matter how much they would like to have it.”

3. The Copyright Office received barely 200 relevant letters to their Orphan Works Study. Although they testified to Congress that the number was “over 850,” they failed to acknowledge that more than 600 letters had to be dismissed as irrelevant or too vague to determine their relevance to orphaned work.

4. In their Orphan Works Report, the Copyright Office failed to acknowledge a unified statement submitted by 42 national and international visual arts organizations. This statement called for the maintenance of existing copyright protections and warned that a bill drafted too broadly would spread uncertainty in commercial markets.

5. The Copyright Office studied the specific subject of orphaned work, yet concluded they had discovered a widespread “market failure” in commercial markets. But since they didn’t study commercial markets, there’s no evidence for this conclusion in their report.

6. The principal author of the Orphan Works Report has acknowledged that their true goal was to “pressure” working authors into relying on registries to protect their work. He said this was necessary because artists and photographers have “failed to collectivize.”

7. Two of the key players in the legislative process have already left government service and gone to work for companies that stand to profit from passage of the bill. On the other hand, one of the parties who testified in favor of the bill has already gone to the Copyright Office. She’s now in charge of orphan works.

We think these and other little known facts give lawmakers sufficient reason not to pass this bill without a thorough vetting.

Tomorrow: The Legislative Blueprint: How a copyright critic and his students tackled the “orphan works issue.”