The Orphan Works Landscape

The New “Improved” Orphan Works bill is due out next week. We expect it to be much the same as the last one. Unfortunately, the Orphan Works landscape has changed.

Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.

Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?

If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do. Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.

We believe the way to speak with one voice is not to submit to a bill that would:
- Create uncertainty in commercial markets;
- Nullify the exclusive right of copyright and therefore
- Reduce the value of your work;
- Threaten the privacy protection afforded by current copyright law; and
- Invite retaliation from abroad.

Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.

Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.

Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.

Written Statement of Brad Holland and Cynthia Turner

On Behalf of the Illustrators’ Partnership of America

Concerning Orphan Works Legislation

The Subcommittee on Courts, the Internet and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives

March 20, 2008

Mr. Chairman and Members of the Subcommittee, while this statement is being filed by the co-chairs of the Illustrators Partnership of America, it reflects a statement previously submitted to the Copyright Office and endorsed by 42 national and international organizations representing a broad spectrum of the commercial and fine artists who make their living from the exercise of the exclusive rights guaranteed to them by the U.S. and international copyright law and treaties.

We respectfully request that the subcommittee delay any action on the pending legislation until we have been able to inform its members fully about our concerns and to work with the subcommittee to address those concerns. It then may be possible to craft legislation that does not unfairly prejudice the interests of those whose livelihood depends on meaningful copyright protection. We also are concerned that the legislation, as drafted, may have spillover effects on a wide variety of copyrighted works that are important to a growing and healthy U.S. economy in the information age.

Under this legislation, as we understand it, effective copyright control to a work, including works of visual art, would require submission of a copy or copies of the work to as yet-to-be created private registration companies that would use untested technologies to scan images submitted by unlicensed users. These users would then be excused from any liability for infringement unless the legitimate rights holder responded within a certain period of time to grant or deny permission to use the copyrighted work. This is a radical departure from any existing business models or practices in the field of copyright.

Further, it radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession.

U.S. copyright law currently contains a number of statutory licenses that legitimize either de minimus use of a work created principally for other uses, or that deal with the special needs of not-for-profit organizations and others that skirt the boundaries of fair use. However, all of these statutory licenses provide for a system of remuneration to the copyright owner for uses that have not been directly authorized. This legislation is neither limited to de minimus uses of works nor does it provide a method of compensation for such uses.

The cavalier disrespect for the fundamental principle of exclusive authors’ rights that is inherent in the Copyright Office’s legislative scheme is reflected in the following colloquy between this author and the General Counsel of the Copyright Office at a meeting in which he responded to the concerns of visual artists about the potential harmful effects of this legislation.

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.)

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 rights holder.

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 minimus 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 compulsory 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.

And, 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 done over the last 30 years what the law never required them to do.

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

– Brad Holland and Cynthia Turner, for The Illustrators’ Partnership of America

Orphan Works Update

Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill.

But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess.

The decision to introduce such a radical bill so late in the session is ominous. Because of fall elections, this will be a short Congressional year. Any bill not passed by the end of Congress will have to re-introduced in the next Congress. That means the bill’s sponsors must know they have their ducks lined up.

Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by.

“Promoting” Orphan Works

Yesterday the House subcommittee on Intellectual Property held their first hearing on new Orphan Works legislation. Note the title:

“Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users”
http://judiciary.house.gov/oversight.aspx?ID=427

Balance, however doesn’t seem to be part of the Orphan Works juggernaut. Indeed, after this hearing, we can no longer assume that the U.S. Copyright Office is an advocate for the protection of creators' rights. As they wrote on page 14 of their original Orphan Works Report:

“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation.” (our emphasis)

But how can any copyright law be “comprehensive” 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 business lives of creators?

Private Sector Registries
Since the last bill died in committee in 2006, the advocates of this legislation have promoted the creation of private commercial registries. On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.

This means you would not only have to register your published work, but also:

— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
— Every letter, email, etc., professional, personal or private.

This Would End Passive Copyright Protection: Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.

The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:

— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.

Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements - which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.

Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.

We urge Congress to carefully reconsider the unintended consequences of this radical copyright proposal.

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