Appeal to House Judiciary

December 8, 2008

The Honorable John Conyers, Jr.
Chairman Committee on the Judiciary
U.S. House of Representatives
2426 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairman Conyers:

On behalf of more than 81 professional organizations – and more than half a million small business owners, we are writing to express our grave concern about the controversial Orphan Works Act of 2008 (HR 5889). We’ve been advised that the Judiciary Committee may try to place it on the Suspensions Calendar and pass it by unanimous consent. Please don’t allow this to happen. This is no way to pass a controversial bill opposed by your constituents. It would strip them of their intellectual property rights without due process.

None of the organizations or businesses listed in the attached sheet – and the number is growing as more people learn about it – had a voice in drafting this bill, yet all citizens stand to be harmed by it. We believe that an orphan works bill can be perfected, but we do not believe there is time to perfect it in a lame duck session. We are therefore urging that this bill be held over until the next Congress, when we would pledge the positive input of the creative community to see that a true orphan works bill is passed.

When Chairman Berman held the single open hearing on this bill March 13th before the Subcommittee on the Courts, the Internet and Intellectual Property, he acknowledged that it was not a true orphan works bill. Let us quote him exactly:

“[W]e should correct a misnomer,” [he said]. “The works we’re talking about are not orphans...The more accurate description... is probably an unlocatable copyright owner...But for the sake of ease we’ll keep talking about them as if they’re orphans.”

With all due respect to the Congressman, if this bill is not about orphaned work, we do not think it should be passed as if it were one. Conversely, if its goal is to make the work of ordinary citizens available as commercial content to large internet databases, such a transfer of rights should be openly and transparently debated on its own merits.

An orphaned work is a work whose author has died or abandoned his copyrights. This bill would redefine an orphan as “a work by an unlocatable author.” This would radically re-define the ownership of private property. This bill, as written, would permit any person to infringe any work by any author at any time for any reason – no matter how commercial or distasteful – so long as the infringer found the author sufficiently hard to find. Since everybody can be hard for somebody to find, this voids every rights holder’s exclusive right to his or her own intellectual property as required by the U.S. Copyright Act. It creates the public’s right to use private property as a default position, available to anyone whenever any property owner fails to make himself sufficiently available to any would-be user.

The Orphan Works bill is being presented as a minor adjustment to Copyright Law. It is not. This bill – in both houses of Congress – would affect the most personal form of private property that exists – the work that citizens create themselves, the work they use to make a living, the work they use to express their time on Earth. It would affect any form of creative expression – from professional artwork to family photos, home videos, songs and lyrics – and anything that anyone has ever been placed on the Internet. It would affect the work of living authors who are still actively licensing their work.

The stated purpose of the bill is to benefit libraries and museums. But if so, why have the doors been opened wide for commercial infringement?

On the premise that culture will be harmed if authors can’t be found, this bill would “pressure” copyright holders to surrender access to their commercial inventory, metadata and licensing information to privately owned commercial databases. Unregistered work would be vulnerable to potential infringement. Since no rational business owner would voluntarily turn over private business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners. And since copyright holders would have to digitize their entire inventory at their own expense to comply, this bill would socialize the cost of compliance while privatizing the profits from creative work.

The bill’s drafters have relied on the 2006 Report on Orphan Works, issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not inquire into the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever. This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases.

The first – and so far only – effort to assess the economic impact of this legislation on the creative community came on August 8, 2008 when the Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. Participants represented artists, writers, photographers, songwriters, musicians, performers and many collateral small businesses. Panelists stressed several key points:

• The high cost of compliance would make it impossible for many small business owners
to comply; yet
• Failure to comply could lead to loss of intellectual property.
• The loss of exclusive rights would breach the sanctity of contracts, and
• Devalue the work of rights holders in their derivative markets.

For the 81 groups in the enclosed list, the most troubling part of this has been our near-total exclusion from the legislative process. To counter the protests of copyright holders, special interests have tried to dress up the House bill with complicated provisions, calling them “speed bumps” for infringers. For example, the House bill requires an infringer to perform a “qualifying search” – where a qualifying search is defined as one that is reasonable and diligent but reasonable diligence is left for the courts to define. Who wants to go to court to seek payment after your work has been used? We’re business people. We make our livings through voluntary business transactions, not lawsuits. Any bill that drives business decisions into the courts is bad for business and bad for the courts.

To understand this bill, we have to go to the heart of the matter. By defining millions of works as orphans on the premise that some might be, this bill will allow Internet content providers to profit by harvesting and monetizing the work of ordinary citizens, providing their databases with content they could never afford to create themselves nor license from authors.

In light of the meltdown on Wall Street, we do not think it’s wise for Congress to concentrate our nation’s copyright wealth in the hands of a few corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel small business owners to subsidize their business models. That means it would be the assets of ordinary citizens at risk in the event of their failure, mismanagement or corruption. The consequences of this step will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of property ownership.

On July 11th, on behalf of all those who wish to see a true orphan works bill, the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property.* The Amendments have never been considered. A new Congress would have the opportunity to do so. Please do not allow this legislation to pass until it can be subjected to an open, informed and transparent public examination.

Sincerely,

Brad Holland, Illustrators' Partnership
212.226.3675, brad-holland@rcn.com

Cynthia Turner, Illustrators' Partnership
850.231.4112, cynthia@cynthiaturner.com

Dr. Theodore Feder, President, Artists Rights Society
212.420.9160, tfeder@arsny.com

Martin Trailer, President, Advertising Photographers of America
800.272.6264, Martin.Trailer@APAnational.com


*H.R. 5889 Amendments available here:
http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html