Saturday, June 21, 2008

An Orphan Works Solution

We have a proposal to solve the Orphan Works issue. It would let libraries and archives digitize their collections and let individuals duplicate family photos without fear of massive infringement penalties. These are the two needs most commonly cited by the bills’ sponsors and they can be resolved quite simply. Our proposal would limit the bill’s effects to works that are really orphans, with no unnecessary spillover effect to damage the commercial activities of working copyright holders.

Digitizing the Collections of Libraries and Museums
Digitizing someone’s work is an act of reproduction and is therefore subject to the authorization of the copyright holder. But to let accredited libraries and archives bypass these authorizations, the law could grant them certain exceptions to reproduce works without the prior consent of the rights holders, mainly for preservation purposes.

To avail themselves of this privilege, institutions could file a notice of intent to infringe with the Copyright Office, documenting that they’ve made a reasonably diligent, but unsuccessful effort to find the copyright holder. These exceptions should not be extended to cover reproductions on a mass scale, because that would clearly conflict with the artists’ own exploitation of their works and that would prejudice the legitimate interests of the copyright holders, a clear violation of the 1976 Copyright Act, the Berne Convention and Article 13 of the TRIPS agreement, to which the US is a signatory.

This proposal is consistent with the submission of the International Federation of Reproduction Rights Organizations (IFRRO) to the European Union’s i2010 Digital Libraries project. See our 2006 report on this:

This means our proposal would meet the needs of libraries, museums and archives, harmonize US policy with our trading partners overseas and win wide praise from the creative community in the US, who would not see the rights of their own work put at risk.

Solving the Grandma issue
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 to permit limited individual infringements under contractual agreements.

For example, family photo issues could be resolved by means of a simple contract: the person who wishes to duplicate or restore a photo of Grandma could sign an easy-to-understand agreement (with either companies such as Wal-Mart or with the photographer next door), stipulating that they've made a reasonably diligent, but unsuccessful search to identify or locate the photographer of record. By doing so, they’d qualify for a precise limited copyright exemption to restore or duplicate the work for home and/or family use only. Under this scenario, it the photographer of record subsequently shows up, 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 photo - 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.

A Limited, Workable Solution
We believe this kind of contractual solution to individual orphan works problems would have two virtues:
1. It would create certainty by specifying the terms of each transaction and would, in fact, mirror the kind of indemnification that professional artists and photographers routinely supply to clients, stipulating that our work is original and doesn't infringe the rights of others.

2. It would have the additional virtue of requiring that only those who avail themselves of the right to infringe would be required to understand the complexities of copyright law, unlike the present bill, which would require all citizens to familiarize themselves with the risks and obligations inherent in the proposed Orphan Works Acts.

3. It would not legalize the infringement of billions of managed copyrights on the grounds that some of them might be orphans.
We believe solutions like this 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.

—Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Don't Let Congress Orphan Your Work
2 minutes is all it takes to write Congress and fight for your copyright:

Tuesday, June 17, 2008

Nashville Town Hall Meeting to Discuss Controversial "Orphan Works" Legislation

Saturday June 21 2:00 PM
At Sunset Grill
2001 Belcourt Ave
Nashville, TN 37212
(615) 386-3663
Admission Free/Open to Public

Congressman Jim Cooper and Congressman John Hall will hold a "Town Hall Meeting" with Nashville's entertainment community this Saturday to discuss music-industry issues such as the controversial "Orphan Works" bill. The event is free and open to the public.

We hope all artists, cartoonists, photographers, art educators and others in the Nashville area will attend to express their opposition to this radical change to copyright law. It’s important to let lawmakers know that this bill will affect all forms of art, damage small businesses and open the door to cultural theft on an unprecedented scale. Please contact others in the Nashville area. Urge them to attend and urge them all to speak out.

Congressman Cooper represents the district that contains most of Nashville's music business. He is a 2006 graduate of the Leadership Music program.

Congressman Hall is the only professional musician in Congress. Formerly a Nashville resident, he is a first-term congressman representing District 19 in upstate New York. Hall founded Orleans and Co-wrote its classics "Still the One" and "Dance with Me." His songwriting hits in Music City included "Juliet" (The Oak Ridge Boys), "You Can Dream of Me" (Steve Wariner), "Reach" (New Grass Revival), and "New Star Shining" (Ricky Skaggs). His songs have also been recorded by Bonnie Raitt, Chet Atkins, Linda Ronstadt, James Taylor and Janis Joplin, among others.

Also see

A Million People Against the Orphan Works Bill

We support this petition. We urge you to sign it. Please forward the link and urge others to sign.
You can help increase the power of the petition by signing your real name and listing your artistic specialties. If you are not a US citizen, we suggest that you note your country, and state if it is a member of the Berne Convention.

The petition is sponsored by A Million People Against the Orphan Works Bill, a new grassroots group founded by multimedia journalist Steve Lehman on Facebook and Flickr. All people are welcome to participate; it is not exclusive to these websites.

In 1987, Lehman broke the story of Tibetan unrest, later profiled in his award winning book "The Tibetans Struggle to Survive." As a visual artist intimately acquainted with the power of free speech, the protection afforded by the right to privacy, and the critical need for independent voices, Lehman, like the rest of us, is deeply troubled by any national policy that affects artists' control over their works.

Saturday, June 14, 2008

Orphan Works Opposition Grows

Over 100,000 letters have gone out to Senators and Congressmen from our online advocacy site. Opposition to the Orphan Works Act continues to grow.

Here are some of organizations who oppose it:

And here are some of the excellent position papers written by some of these groups:
NUJ condemns "free for all" US Orphan Works legislation

The American Association of Independent Music
A2IM Position on the Proposed Orphan Works Legislation in the United States

Association of Medical Illustrators Denounces 'Orphan Works' Bills Before Congress

Association of American Editorial Cartoonists
Copyright Bill Would Burden Artists

The Canadian Association of Photographers and Illustrators in Communications
Orphan Works Update: The Orphan Works Debate in the US

Advertising Photographers of America
APA Position Paper on Orphan Works
Don't Let Congress Orphan Your Work
2 minutes is all it takes to write Congress and fight for your copyright:

Special link for our international friend and colleagues:

Friday, June 13, 2008

Orphan Works Flip-Flop

On June 12, three leading textile trade associations announced their support for the Orphan Works bill.

Writing in Textile World, James A. Morrissey writes: “The legislation, which has cleared a House subcommittee, is supported by the American Manufacturing Trade Action Coalition, the National Textile Association (NTA) and the Decorative Fabrics Association.”

Funny, that’s a 180 degree flip-flop from their House testimony of March 13, 2008. That day a spokesperson from the textile industry testified “on behalf of the hundreds of American companies” who are members of the same three trade groups. She denounced the bill, calling it “unconscionable for Congress to try to impose millions of dollars of costs on individual companies, many of which are small businesses...”

“The proposed orphan work legislation is not a solution to the ‘orphan works’ problem,” she testified. “Instead, it is a blueprint for a radically new copyright law. The inability to distinguish between abandoned copyrights and those whose owners are simply hard to the Catch-22 of the Orphan Works project. This legislation would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works – and that would open the door to commercial theft on an unprecedented scale.”

Strong testimony. So what happened? Did the bill improve?
No, Congress just agreed to exempt textiles from the bill.
So now Congress gets their endorsement.

Definition: When is cultural theft on an unprecedented scale not a problem?
Answer: When you’ve been cut out of the problem.

We hope legislators will judge the merit of such endorsements accordingly.

One last irony: the “strong testimony” quoted above was not original to the textile industry spokesperson. It was appropriated verbatim from Brad Holland’s 2006 Senate testimony and used without attribution or citation. You can read the original here:

Don't Let Congress Orphan Your Work
You can urge Congress to oppose these bills by linking here to a special letter.
Tell Your Senators and Representatives to Oppose the Orphan Works Act at:

Tuesday, June 10, 2008

Visual Artists Go to Washington, Independent Record Labels Oppose Orphan Works Act

Last week over two dozen visual artists, representing illustrators, photographers, fine artists and the arts licensing trades went to Capital Hill to explain to legislators how the Orphan Works Act will harm creators and the hundreds of thousands of art-related small businesses that serve and are dependent on them. At the same time, independent music labels have joined the opposition to orphan works legislation as it currently exists.

The Illustrators’ Partnership has stressed that Orphan Works legislation should be limited to true orphaned work and not act as an unwarranted compulsory license imposed on commercial markets. IPA, the Advertising Photographers of America and the Artists Rights Society have joined to offer amendments to that effect.

Excerpted from the Washington Internet Daily, Monday June 09, 2008:
The visual-arts community hit the Hill last week to protest what it portrays as a hijacking of the orphan-works issue as it was presented in a 2005 Copyright Office report...

The Copyright Office ran a bait-and-switch from its 2005 notice of intent, which focused on facilitating libraries', museums' and other nonprofits' efforts to digitize collections to improve access to them, [Illustrators’ Partnership co-founder Brad] Holland said. Artists want the issue narrowed back to that focus, scrapping commercial use, he said...Copyright Office roundtables on orphan works never addressed alternates to registries, an "untested, untried, unaccountable market system" favoring Google, Getty, Corbis and other commercial aggregators, Holland said. [Cynthia] Turner [also of the Partnership] said artists would incur high costs registering works, and they hesitate to hand over high-res, commercial versions to Google or others.
In the same article, Washington Internet Daily also reports that the leading group of independent music labels has broken with the corporate music trade associations. The American Association of Independent Music has published a position paper opposing the current orphan works bills. The article quotes a music industry executive: "I can tell you that nobody in the music business" sought the bill.

... the executive said the bill is "de facto... establishing a new compulsory license" by putting unregistered artists at a legal disadvantage in court. The law can't explicitly require registration or it will violate the Berne Convention, TRIPS and other treaties the U.S. has signed, the executive said. Book publishers and music executives in the U.K. think the U.S. will be in trouble, the executive said, citing a recent visit: "I can tell you there are European commissioners that are looking at this right now."

– Excerpts from “Orphan-Works Bills Scorned by Visual Arts, Indie Labels” by Greg Piper, Washington Internet Daily June 09, 2008

Also see

Tuesday, June 3, 2008

The Orphan Works Act: Warning to the Public

Should the general public care about the Orphan Works Act?
Yes, because the effects of this bill will expose any citizen's visual images to infringement, including infringement for commercial purposes or distasteful uses.

Most people don't understand current copyright law. But under current law, they don't have to - the law itself protects them from not understanding it. Anything you create is considered your private property.

But under this amendment, all citizens would be required to understand that they must now take active steps - not to actually protect their work (because registries won't protect it) – but merely to preserve their right to sue an infringer in federal court (in case they ever find out they've been infringed in the first place).

Otherwise, ignorance of copyright law will be no excuse against an infringer who has done a "reasonably diligent search" for a photo he found on a blog, photo sharing site, Facebook page, or other source.

Proposal for Copyright Warning and Public Awareness Campaign
If this bill is passed, copyright will no longer be considered the exclusive right of the creator. Therefore, Congress should direct the Copyright Office to commence an awareness campaign to be conducted in all media, explaining to all copyright holders the new terms of copyright protection. Public warnings should state at least the following:
“Due to a change in US copyright law, citizens should now be aware that any creative expression they put into tangible form – from professional artwork to family photos - will be subject to infringement, including infringement for commercial uses, by anyone in the United States who is unable to locate them by what the infringer determines – and a court agrees - to be a reasonably diligent search.

“To preserve your right to sue infringers in federal court, you are advised to take active steps to assert authorship of every work you create.

“These steps will include inserting meta-data in each work, marking each work with a copyright symbol and contact information and registering each work in commercial databases where infringers can search for your work.

“Ignorance of copyright law will be no excuse against an infringer who has done a “reasonably diligent search” according to guidelines established by Congress.”
This should be the minimum warning information and it should be issued to the public on an on-going basis to alert successive generations of the legal obligations they will have to observe as the price of creating art of any kind. We also ask Congress to direct the Copyright Office to establish and maintain local law clinics where creators and other citizens can seek clarification about their obligations under Orphan Works law.

Don't Let Congress Orphan Your Work
You can urge Congress to oppose these bills by linking here to a special letter. Tell Your Senators and Representatives to Oppose the Orphan Works Act at:

Monday, June 2, 2008

Orphan Works Update: The House Bill and Commercial Registries

Backers of the House version of the Orphan Works bill are now asking artists and photographers to oppose the Senate bill unless it’s amended to contain at least the “minimum provisions” that appear in the House version.

Although they don’t say so, opposing the Senate bill in this manner is a vote for the House bill.

We’ve been asked to explain why:
The Senate bill
is similar to the bill we opposed in 2006. The House bill (H.R. 5889) is the result of a year and a half of closed door negotiations between Congress and representatives and lobbyists for special interest groups. These groups have agreed to either endorse the House bill or remain neutral to insure its passage.

The House bill endorses the concept of coerced “voluntary” registration with commercial databases and seeks to make these databases infringer-friendly.
– It would require infringers to file a simple “notice of use” before they infringe.

– It calls for an archive of the notices to be maintained by the Copyright Office or an approved third party
Why do backers of the House bill want these databases to be infringer-friendly?
Because to thrive, commercial databases (registries) will have to do a robust business in rights-clearing and orphan certification. That means encouraging infringers to infringe.

How will these registries work? No details have been given, but experience with image banks suggests the following:

For unregistered work: infringers will use the registries to identify pictures that aren’t registered. Infringers will probably pay the registry a search fee, then use or market the “orphans” like royalty-free art.

For registered work:the registries will act as a kind of stock house: Users will go to them for one-stop shopping to clear rights to your pictures. The registry will probably charge you a commission when they do.

In other words, urging Congress to pass the House bill makes very little sense to us unless your business or organization expects to become a commercial registry. We believe the only way to oppose these bills is to oppose them both.

If you agree, now’s the time to write Congress or write again.

Don't Let Congress Orphan Your Work
You can urge Congress to oppose these bills by linking here to a special letter.
Tell Your Senators and Representatives to Oppose the Orphan Works Act at: