Wednesday, April 30, 2008

Comments on S. 2913, The Shawn Bentley Orphan Works Act of 2008

Illustrators' Partnership of America
Advertising Photographers of America
Artists Foundation of Massachusetts

Respectfully submitted to

Majority Staff
Chairman, Patrick Leahy


Minority Staff
Ranking Member Senator Arlen Specter
Subcommittee on Intellectual Property
Committee on the Judiciary
U.S. Senate

April 30, 2008

Mr. Chairman and Members of the Subcommittee, on behalf of the Illustrators’ Partnership of America, the Advertising Photographers of America, the Artists Foundation of Massachusetts and our many thousands of members nation wide, we are submitting our comments on S. 2913, the "Shawn Bentley Orphan Works Act of 2008." We respectfully request consideration of this document for inclusion in the record of the Senate Judiciary Subcommittee on Intellectual Property. While this statement is being filed by our specific organizations, it reflects a statement previously submitted to the Copyright Office by the Illustrators’ Partnership and endorsed by 42 national and international organizations representing a broad spectrum of the commercial artists, fine artists and photographers who make their living from the exercise of the exclusive rights guaranteed to them by the U.S. and international copyright law and treaties.

Creators endorse the concept of an orphan works solution that would be give libraries and museums access to work whose authors have died or otherwise abandoned their copyrights. Many artists use older works in one way or another and most would welcome any clarity that the law can provide regarding the use of true orphaned work. We believe the orphan works problem can be and should be solved with carefully crafted, specific, limited exemptions. For example:
• An exemption could be tailored to solve family photo restoration and reproduction issues.
• Usage for genealogy research is probably already covered by fair use, but could rate an exemption if deemed necessary.
• Limited exemptions could be designed for documentary filmmakers.
• Libraries and archives already have generous exemptions for their missions. However, if they believe they need expanded access to work whose authors are hard to find, we’d suggest that Congress adopt a variant of the Orphan Works clearance system in use in Canada.
Canada has created a statutory licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners.

The license is issued by the Canadian Copyright Board. Decisions are made on a case-by-case basis through application to the Board. If the Board is satisfied by the applicant’s efforts of e-mails, phone calls, written correspondence, approaches to copyright collectives, Internet searches, etc., then it may issue a non-exclusive license which is valid only in Canada, subject to any terms and conditions it sees fit.

A system such as this would serve potential users of orphaned work by allowing them to clear rights in an orderly, verified way. Therefore we respectfully ask that the Senate conduct further hearings to resolve the specific problem of providing public access to true orphaned works. Our objections to S.2913 – which incorporates the proposals made by the Copyright Office – is that its effects cannot be limited to old or abandoned copyrights. Their recommendations would endanger the rights of artists who are alive, working and managing their copyrights. Although the Senate and House bills differ slightly, the effect of either would be devastating to commercial markets in which freelance artists and photographers work, as well as for the licensing and other collateral small businesses that serve, and are dependent on, creators.

Indeed, the Copyright Office proposals have been written so broadly that it will affect anyone who produces visual images of any kind, from professional paintings and photographs to family snapshots and home videos. Any published or unpublished work, including any pictures that reside or have ever resided on the web, will become potential orphans if this bill becomes law.

This unprecedented expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself. It will discourage individuals from publishing their works in any free or easily accessible forum. It will force us to pay protection money to middlemen to “protect” work we have created ourselves. It will drive into the court decisions that should be made in the marketplace. It represents a radical departure from existing business models and copyright law. It is one reason – if hardly the only one – why international copyright law, specifically Article 5 (2) of the Berne Convention, prohibits the requirement of “any formality” as a pre-condition to the enjoyment of full copyright.

Our objection to these bills is that they would force anyone who creates a visual work, whether the work is professional or personal, published or unpublished, to register it with as-yet-to-be-created commercial registries. This would endanger any unregistered work, because as users came to rely on registries to conduct a “reasonably diligent search” for rights holders, any works not found in the registries could be infringed as orphans.

These proposals would have a disproportionate impact on visual artists because paintings, drawings and photographs are often published without contact information, credit lines can be removed easily by others and the pictures themselves separated from the publications in which they appeared.

Moreover, the average visual artist produces infinitely more individual works than even the most prolific author or songwriter. The cost to the artist in time and money of registering and maintaining thousands or tens of thousands of registrations will inevitably result in countless managed copyrighted works falling through the cracks and into the royalty-free market. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would signal to infringers that these works had been orphaned and were subject to legal infringement.

The consequences of this blanket stripping of copyright protection will be a gold mine for opportunists. Within two weeks of the issuance of the Orphan Works Report in 2006, nearly all the domain names associated with orphan works were registered by commercial interests in preparation for the profit-taking that will result if this legislation is passed. This bill will allow stock agencies and commercial archives to harvest these newly-created “orphans,” alter them slightly to make them “derivative works,” then copyright these derivatives as their own “creative” works. Freelancers could 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.

The Orphan Works Act goes far beyond current concepts of fair use. It would have the effect of forcing freelance creators to risk their own bodies of work to subsidize the start-up businesses of untested search technologies and untried business models – models which would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who actually create the art. This would strike a blow at the heart of art itself.

The Copyright Office has cited their 2005 study of orphan works to extrapolate a claim of widespread failure in commercial markets. But they have provided no evidence of this. Speaking at “Orphan Works: A Search for Solutions,” hosted by the Progress and Freedom Foundation, March 31, 2006 Jule Sigall, then Associate Register for Policy & International Affairs, U.S. Copyright Office, explained that Congress needed to “push” artists and photographers to change the ways in which their “sectors” do business (page 23 of the transcript):
[A]t this stage, in respect to the [Orphan Works] legislation...the real question we need to ask and answer is, what kinds of provisions put the right pressure [on photographers and illustrators] to get to that point? Who needs to be pushed there? I mean... I use this line a lot, photographers and illustrators like to say, “We haven’t collectivized...” This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.
(Emphasis added)
Nothing expresses the looking glass logic of the Copyright Office proposals better than this apparent belief by the bill’s “principal author” that an amendment legalizing the infringement of millions of commercial copyrights is necessary in order for buyers to find sellers in the field of visual arts. Even a cursory glance at our field refutes this logic:

Consider magazines such as Vanity Fair, The New Yorker, Time or Vogue. All of them and countless others are filled from cover to cover with photographs and art. How can anyone seriously argue that in the visual arts “sector” “buyers can’t find sellers”? Or look at the countless images published in newspapers, trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards, greeting cards, surface and fabric design. How can anyone be surrounded by this sea of images and still argue that the intellectual rights of the creators must be jeopardized in order to “pressure” them to rely on private, for-profit registries – on the premise that unless this is done, illustrators and photographers will be too hard for the users of images to find?

To the contrary, an entire food chain of collateral markets already exists to facilitate the process by which image buyers successfully find image sellers: Agents, commercial directories, trade shows, ads in trade publications, direct mail, web sites and e-mail solicitations all attest to the fact that hundreds of thousands of creators are engaged daily in the robust business of making themselves accessible to potential users. All of these businesses will be hurt by a bill that legalizes the infringement of the work they trade in. None will be helped by placing on them the onerous and costly burden of registering and maintaining tens of thousands of individual copyright registrations, not to mention the impossible burden of trying to monitor infringements of their work, which can occur anytime, anywhere in the world.

The Library of Congress already holds millions of visual deposits of registered visual works. These registrations can only be searched by text description.

As part of the Library of Congress' digitizing initiative to create digital access to its collections, it should begin with the Copyright Office records of VA registrations, and create the very database described by S.2913. The database should not expose the works to public view online where they could be stolen. Instead, it should allow searchers to upload an orphan image to be matched against the collection via image-recognition technology, and return the rightsholders name and contact information to the searcher.

Any government-mandated image registry should not be in the private sector. If Copyright law requires registration for full copyright protection, and Copyright law is to now be amended to require an image registry to maintain full copyright protection of visual works, then the Copyright Office should first provide a searchable image-recognition database of registered works, and bring its collections into compliance to honor the registrations it has issued for decades.

On January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office could not and would not create the registries this bill would require because it would be “too expensive.” The following exchange took place between a representative of the Illustrators Partnership and the new Associate Register of Policy and International Affairs for the Copyright Office:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
From the author’s notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
• Unregistered work will be considered a potential orphan from the moment an artist creates it.

• In the U.S., copyright will no longer be the exclusive right of the copyright holder.
We believe strongly that this legislation as now written violates the obligations and commitments of the United States under Article 5 (2) of the Berne Convention on Literary and Artistic Rights which states:
“The enjoyment and the exercise of these rights shall not be subject to any formality. (Emphasis added)
This Berne Convention principle has been incorporated into the Universal Copyright Convention and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These agreements acknowledge narrow limitations and exceptions to the exclusive right of copyright – so long as the exceptions don’t exceed the constraints of the TRIPS Three-Step Test:
“Member [countries] shall confine limitations and exceptions to exclusive rights to:
(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rightsholder.”
Legal scholars Jane Ginsburg and Paul Goldstein have warned that Orphan Works legislation must precisely define the scope of its mandate or fail to meet the three-step-test. As they wrote in their submission to the Orphan Works Study:
“[T]he diversity of [orphan works] 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).
We do not believe the Copyright Office proposals address the concerns of professors Goldstein and Ginsburg and would, if enacted, subject the United States to complaints of treaty non-compliance at the World Trade Organization. And we would expect the international reprographic and artists rights societies which endorsed our submissions to the U.S. Copyright Office would be able successfully to encourage their governments to bring such complaints.

As the world’s leading creator and exporter of copyrighted works, the credibility of efforts of the United States to secure effective international enforcement of copyright would be materially weakened by the enactment of this proposed legislation. Certainly any law that prevents effective remedies or imposes arbitrary burdens on the right to bring infringement actions – much less provide for compensation for de minimis uses – would be seized upon by those in other countries who wish to defend piracy of U.S. works.

In addition to our concerns about the coercive licensing aspects of this legislation we would like to acquaint the subcommittee with the unique characteristics of illustration and other visual works of art that distinguish us from those who create other categories of copyrighted works such as literary works, songs and films. Unlike these other categories of works, works of visual art lack universally accepted titles that would allow users to search for them by name. Therefore the role of image recognition technology is critical. This technology is still in its infancy, is untested, and its use raises a number of very practical concerns. Among these concerns:
- The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works;

- The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore

- Every artist would see thousands of his creations potentially orphaned from the moment of creation.

- No registry would be meaningful until billions of pre-existing works (both published and unpublished) from artists (both living and dead) have been digitized; but

- Few, if any, living artists could afford the time and expense of digitizing and registering a backlog of tens of thousands of their own works; therefore

- Countless working artists would find countless existing works orphaned from the moment they create them.
Further, we have a number of unanswered questions about how the registries that are key to this legislative scheme would work, such as:
- Who is to be trusted with this [these] valuable database(s)?

- Why should any professional creator be forced to entrust his or her entire creative inventory to the control of other commercial entities?

- What happens when a registry is hacked?

- What happens when it’s acquired?

- The contents of these image registries will be more valuable than secure banking information. What happens when the terms of service are changed?

- What happens when registration fees become prohibitive?

- What if individual artists cannot afford to maintain their immense bodies of work in competing registries?
Finally, we are concerned that, even if artists do comply with these coercive measures, they might still find their work orphaned. Let’s say an artist registers tens of thousands of images with one or more commercial registries. A user searches for one of his images and makes a match. The user contacts the artist and asks to use the art for a silly or distasteful ad. Or he asks to use the art for free. Most artists already see such inquiries and we know there aren't enough hours in the day to deal with them. Yet under this law, we would be obligated to respond to every irresponsible request! All this uncertainty would drive ordinary business transactions into the courts where uncertainties would multiply: judges unfamiliar with commercial markets would routinely have to render decisions regarding countless disputes in fields in which they lacked expertise.

The imposition of coerced registration in the U.S. could force foreign rightsholders to pay to register their work with U.S. registries, inviting foreign governments and business to retaliate in unpredictable ways.

Finally, many of the images to be affected by these proposals will be works created since 1976, when the current copyright act was passed. That law promised artists that their art would be protected even if it was not marked and registered. Yet if the Copyright Office proposals become law, any unmarked picture created in compliance with the 1976 law will become an instant orphan. Countless rightsholders will be penalized for not having registered their work with commercial registries that did not exist at the time and do not yet exist, even now.

We appreciate the opportunity to submit these comments and look forward to working with the subcommittee to address our concerns.

Respectfully submitted,

Brad Holland
Illustrators’ Partnership of America

Cynthia Turner
Board Member
Illustrators’ Partnership of America

Constance Evans, National CEO
Martin Trailer, National President
Advertising Photographers of America

Katheen Bitetti
Artist & Executive Director
Artists Foundation of Massachusetts

Friday, April 25, 2008

Orphan Works Bills Released in House and Senate

Both House and Senate versions of the Orphan Works Act of 2008 can be downloaded from the IPA homepage:

Many groups are coming together to oppose this bill. We’re preparing letters you can customize and send to your representatives through our push-button link. Please stay tuned and we’ll give you the tools we need to make our voices heard.

For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists

Tuesday, April 22, 2008

New Orphan Works Act Due Out This Week

Today the House and Senate sent us draft copies of the new Orphan Works Act of 2008. They haven’t officially released it yet, but we’ve been told the Senate will do so this week. A quick analysis confirms our worst fears and our early warnings. If these proposals are enacted into law, all the work you have ever done or will do could be orphaned and exposed to commercial infringement from the moment you create it.

A webcast interview with Brad Holland about this bill is now available at:

Please listen to it because this radical proposal, now pending before Congress, could cost you your past and future copyrights.

On Saturday April 5,2008, artist and producer Mark Simon interviewed Hall of Fame illustrator Brad Holland on the subject of Orphan Works legislation. The warnings in this interview have now been confirmed by the advance drafts of the bill. Learn what artists groups are doing and how you can help oppose this radical departure from traditional copyright law and business practice.

The Illustrators’ Partnership is currently working with our attorney - in concert with the other 12 groups in the American Society of Illustrators Partnership to have our voices – and yours - heard in Congress. We’ll keep you posted regarding how you can do your part.

Mark Simon has worked on over 2,500 productions in the last 20 years as a director, producer, story artist, animator and designer. His clients include Disney, Universal, Viacom, Sony, HBO, Nickelodeon, Steven Spielberg, Fox, USA Networks, ABC, AT&T, and many others.

Please forward this information to every creative person and group you know. Mr. Holland and Mr. Simon have given their permission for this audio file to be copied and transferred and replayed.

Wednesday, April 16, 2008

Orphan Works – No Myth

We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.

How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”

Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators’ Partnership testified against it in both the House and Senate.

Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...

“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we’re on the edge of our seats.’” -Intellectual Property -Progress Seen on Developing ‘Orphan Works’ Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”
Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”.
Since that would give us only a month to notify artists, we decided to start now.

Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector...”
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”

Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.

Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
Q: But the “orphan works problem” isn’t just something dreamed up by evil corporations to steal your vacation photographs. It’s an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“[I]t is important to realize that the [1976] 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 (emphasis added).”
SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report
Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.

Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “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.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.”
Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.

Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”

Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.

Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:

“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn’t have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.

“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.

“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report
A: Maybe so, but under this bill
-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:

1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).”
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.

3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.

4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.

5. There is no Copyright Bureau of Investigation; no Copyright Police Force.

6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.

7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So

8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.

9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because

10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.

11. This is a powerful incentive for a thief not to risk stealing our work.

12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.

Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.

The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.

Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.

In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] 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 (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments
It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works 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 (emphasis added).”
Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?

The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:

“If you find a creative work, you may not know who created it, but you know you didn’t.”

Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.

- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership

The author has given his permission to post or forward this article in its entirety to any interested party.

Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business, “Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly
“First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law

Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.

Wednesday, April 2, 2008

How Registries Will Orphan Your Work

When the Copyright Office spawned the Orphan Works bill (2006), they said it would not cause problems for artists. They were wrong. Now they concede the problems, but say registries are the solution. Wrong again.

PicScout is one of the technologies being developed for locating visual art. On March 13, they touted their capabilities to the House IP subcommittee:

“Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success... Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.”

PicScout is just one of several firms that hope to benefit from the Orphan Works bill. They envision a future registry in which registered pictures will not be available for review or browsing. Instead a searcher would feed in a desired image and if there’s a match, get back only the artist’s name and contact information – or be told there is “no match.”

So far, so good – for all the pictures in the registry. But “no match” – there’s the rub.

You Can’t Find What’s Not in the Registry: Let’s say you haven’t registered a particular image in the system. In that case, the best technology in the world won’t find it there. So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually orphan a non-orphaned image.

But let’s say you comply with this coercive bill. You register tens of thousands of your works with one or more commercial registries. Are these works now safe from infringement? No! They can still be orphaned. Here’s how:

PicScout’s claim of “99% success” concedes a margin of error of at least 1%. Sounds small, doesn’t it? But consider:

– Google has already said they intend to use millions of orphaned works. Other businesses will use millions more.

– One percent of every million searches means 10,000 registered images “accidentally” orphaned.

– Multiply 10,000 accidental orphans by millions of millions of searches and you have an astronomical number.

– These are images that will be orphaned even though the artists spent the time and money to register them.

– Will these artists be able to sue for infringement?

– Yes, but at their own risk, because

– The users’ use of registries will prove they did a “reasonably diligent search.”

And there’s another problem:

– It’s statistically impossible for each million searches to orphan the same 10,000 images.


– Every image you register will be permanently vulnerable to an infinite number of orphan opportunities; also:

– An image may turn up as a “match” on one registry – while being orphaned on another.

There are many reasons why international law forbids coerced registration as a condition of protecting your copyrights. We’ve just given you some.

We believe the technology being developed by PicScout and others is fantastic. But it should be used to help artists protect their rights; not to facilitate cultural theft on an unprecedented scale.

Please help us spread the word about this bad bill.