Copyright Modernization Act pulled from this Congress, Smith vows to pass it next session
First the good news: The Copyright Modernization Act (aka Orphan Works Act) appears to be dead for this year. For the third time in as many weeks the bill failed to make it out of mark-up today, and in two days Congress adjourns for this session.
Now the bad news: Lamar Smith seems committed to this awful bill and has promised to bring it back next year.
And a caveat: Congress returns after elections for a "lame-duck" session, so the bill could still be attached to some other unrelated bill and passed into law without discussion. Don't breathe too easily until this Congress is adjourned for good.
Although there's little reason to break out the champagne over this development, the illustration community should take great satisfaction from the knowledge that your unprecedented efforts have brought sufficient scrutiny to this bill to have stalled it so far. Remember that in March, the bill's sponsors warned us that it would be law by now and that any group that opposed it would be "ignored" and "left behind." It hasn't worked out that way.
Because of your efforts — and those of our allies, the photographers, textile designers, greeting card manufacturers and others — Orphan Works legislation has now been exposed as a Trojan Horse for those who want to see a radical change in copyright law. We need to stay vigilant and we must expect that when the bill comes back (in whatever form) its sponsors will be prepared for principled opposition. They'll plan their strategy accordingly, and we should be ready to renew our campaign all over again.
In the meantime, thanks to all of you for a united effort — you did a fantastic job. We'll pass along more information when we learn more.
— Brad Holland and Cynthia Turner
for the Board of the Illustrators' Partnership
This may be posted or forwarded in its entirety to interested parties.
Wednesday, September 27, 2006
Wednesday, September 20, 2006
Manager's Amendment
Amendment to Copyright Modernization Act requires the Copyright Office to create a text-searchable database of visual works.
The Copyright Modernization Act was scheduled for mark-up today but has been delayed again, perhaps until next week.
In response to criticism from visual artists, Rep. Lamar Smith (R-Texas) has now introduced a “Manager’s Amendment” to the bill that would require the Copyright Office to create a text-searchable database of visual works.
The effective date is whenever the Copyright Office does it or 2011, whichever comes first. With all due respect, we suggest that Congress pass the “Manager’s Amendment” by itself and put the rest of the Orphan Works Act on hold.
Reason: a searchable database would allow users to source and access a vast number of rightsholders without compromising the protected work of artists who are simply hard to find — or whose authorship can’t be determined by a text-based search — or whose art was never registered in the first place (as the 1976 Copyright Act did not require it to be).
The “Manager’s Amendment” (without the Orphan Works Act) has several virtues lacking in the blunderbuss bill.
In other words, as an isolated proposal, we think the “Manager’s Amendment” has tremendous merit, but attached to the Orphan Works Bill, it merely lessens the overall damage the bill would do.
Why the rush to pass this bill? No rights will be lost and no businesses damaged if it doesn’t pass, but there’ll be havoc in commercial markets if it does.
We believe the passage of the “Manager’s Amendment” in place of the Orphan Works Act, would be a significant Congressional achievement. Let the Copyright Office lead the way by making its own records more accessible to users. Once the database is in place, then re-consider the Orphan Works Act.
Brad Holland and Cynthia Turner
— For the Board of the Illustrator's Partnership
The Copyright Modernization Act was scheduled for mark-up today but has been delayed again, perhaps until next week.
In response to criticism from visual artists, Rep. Lamar Smith (R-Texas) has now introduced a “Manager’s Amendment” to the bill that would require the Copyright Office to create a text-searchable database of visual works.
The effective date is whenever the Copyright Office does it or 2011, whichever comes first. With all due respect, we suggest that Congress pass the “Manager’s Amendment” by itself and put the rest of the Orphan Works Act on hold.
Reason: a searchable database would allow users to source and access a vast number of rightsholders without compromising the protected work of artists who are simply hard to find — or whose authorship can’t be determined by a text-based search — or whose art was never registered in the first place (as the 1976 Copyright Act did not require it to be).
The “Manager’s Amendment” (without the Orphan Works Act) has several virtues lacking in the blunderbuss bill.
- It would do no harm.
- It’s doable, although it needs tweaking. (It should require the Copyright Office to include all works registered since 1976, not just future works registered electronically once the Copyright Office can do it.)
- It would serve as a model on which other incremental changes could be based.
In other words, as an isolated proposal, we think the “Manager’s Amendment” has tremendous merit, but attached to the Orphan Works Bill, it merely lessens the overall damage the bill would do.
Why the rush to pass this bill? No rights will be lost and no businesses damaged if it doesn’t pass, but there’ll be havoc in commercial markets if it does.
We believe the passage of the “Manager’s Amendment” in place of the Orphan Works Act, would be a significant Congressional achievement. Let the Copyright Office lead the way by making its own records more accessible to users. Once the database is in place, then re-consider the Orphan Works Act.
Brad Holland and Cynthia Turner
— For the Board of the Illustrator's Partnership
Monday, September 18, 2006
Sugar Coating the Orphan Works Act
It’s transparently irresponsible to legalize the abuse of private property on the premise that you might create some undefined “remedies” to handle the abuse.
The new Copyright Modernization Act sugarcoats the Orphan Works bill by proposing to consider "Remedies for Small Copyright Claims." We’ve already noted the problems this raises in our March 2 post, “No Time to Go Wobbly”:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00182
and in our testimony before the House IP Subcommittee March 29:
At that hearing, we were asked to testify about "small dollar" infringement remedies without mentioning Orphan Works – as if the subject was separate from the OW bill. We insisted that the two proposals were linked and testified to that effect. Now it's clear they are linked: see page 95-96 of The Copyright Modernization Act: Sec. 204. Inquiry on Remedies for Small Copyright Claims.
Section 204 requires the Copyright Office to conduct a year-long feasibility study, to begin "not later than 1 year after the date of the enactment of this Act," and to submit to Congress "such recommendations [for copyright Small Claims remedies] that the Register [of Copyrights] considers appropriate."
In other words, pass the bill first, then conduct the study.
Let's consider a possible scenario:
Since Congress concedes that an Orphan works bill will increase infringement litigation, lawmakers should delay any further discussion of this legislation until after the feasibility study has been conducted and its recommendations budgeted and implemented. It’s transparently irresponsible to legalize the abuse of private property on the premise that you might create some undefined “remedies” to handle the abuse.
— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Please post or forward this email in its entirety to any interested party.
The new Copyright Modernization Act sugarcoats the Orphan Works bill by proposing to consider "Remedies for Small Copyright Claims." We’ve already noted the problems this raises in our March 2 post, “No Time to Go Wobbly”:
and in our testimony before the House IP Subcommittee March 29:
Written Statement:http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00202 Webcast of testimony:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00201
At that hearing, we were asked to testify about "small dollar" infringement remedies without mentioning Orphan Works – as if the subject was separate from the OW bill. We insisted that the two proposals were linked and testified to that effect. Now it's clear they are linked: see page 95-96 of The Copyright Modernization Act: Sec. 204. Inquiry on Remedies for Small Copyright Claims.
Section 204 requires the Copyright Office to conduct a year-long feasibility study, to begin "not later than 1 year after the date of the enactment of this Act," and to submit to Congress "such recommendations [for copyright Small Claims remedies] that the Register [of Copyrights] considers appropriate."
In other words, pass the bill first, then conduct the study.
Let's consider a possible scenario:
- The Copyright Modernization Act is rammed through. Congress acknowledges that infringement cases will multiply.
- But not to worry, they’re considering "remedies."
- Once the bill is passed, the Copyright Office begins its study.
- A year later, they conclude it's not economically feasible to create an entirely new branch of the federal judiciary system to handle small copyright disputes.
- Enjoy your "Modern Copyright" law, folks.
Since Congress concedes that an Orphan works bill will increase infringement litigation, lawmakers should delay any further discussion of this legislation until after the feasibility study has been conducted and its recommendations budgeted and implemented. It’s transparently irresponsible to legalize the abuse of private property on the premise that you might create some undefined “remedies” to handle the abuse.
— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Please post or forward this email in its entirety to any interested party.
Thursday, September 14, 2006
Orphan Works Update: Mark-up Postponed
The Copyright Modernization Act of 2006 was pulled from the schedule for mark-up today. House Judiciary IP Subcommittee Chairman Lamar Smith said that representatives of the various interests were meeting with him and Ranking Member Berman, or their senior staff, for further discussion.
We will keep you updated on the bill's status.
— Brad Holland and Cynthia Turner,
for the Board of the Illustrators’ Partnership
Please post or forward this email in its entirety to any interested party.
We will keep you updated on the bill's status.
— Brad Holland and Cynthia Turner,
for the Board of the Illustrators’ Partnership
Please post or forward this email in its entirety to any interested party.
Tuesday, September 12, 2006
Orphan Works Go Ballistic
Smith introduces The Copyright Modernization Act of 2006
In our Senate testimony on Orphan Works, we warned that “the Orphan Works Act is not an Orphan Works Act at all, but a radically new copyright law.” Today comes the confirmation.
We’ve just been informed that Congress has drafted a new bill, tentatively called “The Copyright Modernization Act of 2006.” It’s scheduled for mark-up, perhaps as early as Wednesday.
At more than 100 pages, we haven’t had time to completely review it, but it appears to embody all the bad provisions of the Orphan Works Act into a comprehensive overhaul of U.S. Copyright Law.
Judging by its length, it’s not likely that congressmen whipped this up as an afterthought during their August recess. Yet, if it’s been in the works, why the surprise? And why the stealth?
The speed and secrecy with which certain interests want copyright law rewritten raise questions. We’ll try to learn more about this and report what we learn.
— Brad Holland and Cynthia Turner
for the Board of the Illustrators’ Partnership
In our Senate testimony on Orphan Works, we warned that “the Orphan Works Act is not an Orphan Works Act at all, but a radically new copyright law.” Today comes the confirmation.
We’ve just been informed that Congress has drafted a new bill, tentatively called “The Copyright Modernization Act of 2006.” It’s scheduled for mark-up, perhaps as early as Wednesday.
At more than 100 pages, we haven’t had time to completely review it, but it appears to embody all the bad provisions of the Orphan Works Act into a comprehensive overhaul of U.S. Copyright Law.
Judging by its length, it’s not likely that congressmen whipped this up as an afterthought during their August recess. Yet, if it’s been in the works, why the surprise? And why the stealth?
The speed and secrecy with which certain interests want copyright law rewritten raise questions. We’ll try to learn more about this and report what we learn.
— Brad Holland and Cynthia Turner
for the Board of the Illustrators’ Partnership
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