Orphan Works: A Public Knowledge Postmortem

"Orphan works relief was vigorously opposed by visual artists... And while we have thought some of their concerns misguided, they did a fine job of organizing and getting their voices heard."

That was the rueful conclusion Monday from the President of Public Knowledge. She was conducting a postmortem on her blog to explain why their last minute efforts to pass the Orphan Works Act failed last week.

Public Knowledge is one of the key special interest groups driving orphan works legislation. And while interested parties around the country were being told all week that the bill was dead, she now confirms that there was a secret last minute push to pass it:

"[W]ith the country's financial crisis raging [she writes] and Congress in the middle of deliberations over a bill to rescue our financial institutions, there was still an opportunity to get a bill done. But how? The best option was to get either House Courts, Internet and Intellectual Property Subcommittee Chairman Berman or House Judiciary Committee Chairman Conyers to take the Senate bill that passed and put it on the 'suspension calendar,' which is the place largely non-controversial legislation gets put so that it will get passed quickly. There can be no amendments to bills placed on the suspension calendar, but it needs a 2/3 majority to pass (italics added).

"On Saturday, September 27," she continues, she and others "were on the phone imploring the members to move the bill...":

"The negotiations went on for hours and hours on Thursday into Friday, but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with [sic] on language with the House staff. Late Friday afternoon, the House voted in favor of a bailout bill and everybody went home. Time had run out." http://www.publicknowledge.org/node/1783

Public Knowledge has a "Six Point Program" to undo existing copyright law. "Orphan Works Reform" is Number 5. http://www.publicknowledge.org/node/1245 And while they're "disappointed" they weren't able to pass the bill this session, she advises supporters to "focus on what positive things came out of the process, so [they] can move forward quickly next year."


PK says artists have learned their lesson

In her opinion, one of the "positive things" to "come out of the process" is that:

"[V]isual artists, graphic designers and textile manufacturers who opposed orphan works relief now understand that they must change their business models." (Italics added.)

Artists "must change their business models"? Is that a sound we hear from inside the Trojan Horse?

Whatever happened to the claim that this bill was only a minor tweak to copyright law - to let libraries and museums digitize their collections of old work - or let families duplicate photos of grandma?

That was the argument lawmakers heard last spring, when the bill was rolled out suddenly, scripted for quick and easy passage. But now that the anti-copyright lobby has had to fight for it, they've dropped their guard. Now it's time to openly lecture artists that the world is changing and we'd better get used to registering our work with privately owned "databases" -- at least if we want to ensure that our works won't become orphaned.

But of course that was the agenda all along.


PK says not all artists are misguided

PK'sPresident wants Congress to know that not all artists are "misguided" - only those that oppose the bill. Currently, 80 professional groups do.

By contrast, she cites the Graphic Artists Guild as an example of artists who have learned their lesson. She praises GAG as "enlightened," because GAG supported the House version of the bill. She quotes a recent letter from GAG's President in which he admonished artists to "get real about this Orphan Works scare":

"I don't think Orphan Works is going to have a dramatic influence on how we do business [he wrote], but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we've expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we'd be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us."

We replied to the GAG letter weeks ago, when it was first circulated to artists. We obviously disagree. Indeed, we'd point out that what the community of artists is doing by opposing this bill is "protecting our own creations":

• The Orphan works bill would have a dramatic affect on business, because it would let people infringe our work without our knowledge, consent or payment.

• Most people who succeed in our field do "treat art as a business."

• People who are bad at business can't be used as proof that successful people must change their business models.

• You can't justify exposing an artists' property to theft by telling him he didn't write enough "letters to low-paying publishers."

• What artists do or don't "give away" on their own doesn't justify government's taking anything from them.

• It's counter-intuitive to tell small business owners we should accept a bill that's bad for business to prove that we've "awakened to the importance of tending to business."

• If we don't fight to keep the work we create, that would be the ultimate failure to tend to business.

A full response to the entire GAG letter is here: http://ipaorphanworks.blogspot.com/2008/09/orphan-works-why-bet-against-ourselves.html


The Orphan Works Act was based on a premise and a conclusion:

• The premise is that the public is being harmed because it doesn't have enough contact information to locate copyright owners.

• The conclusion is that artists must change their business models.

• What's lacking is any evidence in between.

The Orphan Works Act was based on recommendations by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not study the business models of artists who are alive, working and managing their copyrights. That means there can be no meaningful conclusions drawn from their study to dictate that such artists must change their business models.

From the beginning, artists have said we'd support a true orphan works bill. We've submitted precise amendments that would make one out of this bill. http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html Our amendments have never been considered.

Instead, as PK's President noted in her postmortem, their last minute strategy for passing the bill would have "put it on the 'suspension calendar.'" And "[t]here can be no amendments to bills placed on the suspension calendar..."

The anti-copyright lobby is well funded. They have powerful backers. They've warned us they'll be back next year.

We should take them at their word.

– Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership