Orphan Works: A Lame Duck Countdown, Part V

Through the Looking Glass

Orphan Works advocates defend their proposals by saying they’re necessary to put users in touch with copyright owners. They say this isn’t happening now because of a market failure in commercial markets.

Speaking at a Congressional Seminar March 31, 2006, Copyright Office attorney Jule Sigall explained why they believed artists needed Congress to “push” them to register their work with privately owned copyright registries (page 23 of the transcript):

“[A]t this stage, in respect to the legislation...the real question we need to ask and answer is, what kinds of provisions put the right pressure [on photographers and illustrators] to get to that point? Who needs to be pushed there? I mean... I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized...’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Emphasis added) http://www.pff.org/events/pastevents/033106orphanworks.asp

Nothing expresses the looking glass logic of the Orphan Works bill better than this statement by the “principal author” of the Copyright Office report that an amendment legalizing the infringement of millions of commercial copyrights is necessary in order for buyers to find sellers.

For the record, there is no evidence in the Copyright Office report that art directors and commercial clients are having any difficulty finding the contributors they want to work with. No evidence whatsoever! Indeed, even a cursory glance at our field refutes that conclusion:

Consider magazines such as Vanity Fair, the New Yorker, Time or Vogue. All of them and countless others are filled from cover to cover with photographs and art - as are newspapers, trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards greeting cards and more. How can anyone be surrounded by this sea of images and seriously argue that in the visual arts “sector,” “buyers can’t find sellers”?

The Copyright Office “evidence” for their conclusion of market failure amounts to no more than 215 relevant letters submitted to their study on the specific subject of orphaned work. Since they didn’t study the workings of commercial markets, there cannot possibly be any valid grounds for deducing a market failure in those markets. You can’t study apples and draw conclusions about oranges.

Orphan Works “For the Sake of Ease”
However unfounded, this Copyright Office factoid of “market failure” is now an orphan works fact to lawmakers. When Chairman Berman of the House IP Subcommittee held the sole public hearing (I hour 27 minutes) on this bill, March 13, 2008, he acknowledged in his opening statement that it was not a true orphan works bill. Yet he insisted it was necessary to correct a “market failure”:

“[W]e should correct a misnomer. The works we’re talking about are not orphans...The more accurate description of the situation is probably an unlocatable copyright owner...this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.”
http://www.copyright.gov/video/testimony-3-13-08.html

But to redefine an orphaned work as “a work by an unlocatable author” is to radically re-define the ownership of private property. Since everybody will be hard for somebody to find, this bill 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. And this would create the public’s right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

We may presume that the bill’s backers don’t want to be seen as trying to strip citizens of their intellectual property rights without due process. So instead they now argue that they’re only trying to help artists, who in their fecklessness, oppose the bill because we don’t want to be helped.

The Myth of the Feckless Artist
The best example of this mythologizing can be found in statements coming from Public Knowledge, one of the driving forces behind this legislation. On May 29, 2008, Gigi Sohn, President and Co-Founder of PK, explained to listeners at the Center for Intellectual Property why artists perversely oppose these bills:

“Now let me tell you what the main opponents of orphan works legislation really don’t like about it...[they] don’t like the fact that good faith users- those who are willing to pay but can’t figure out who to pay - might be able to use their works without permission and without the maximum financial punishment. They want to control every use of their works, and whether or not they receive fair payment is beside the point.” http://www.publicknowledge.org/node/1594 *

And on August 21, 2008, her colleague at PK, Alex Curtis, reiterated the theme:

“Visual artists say they have a problem, that no one can find their work, or at least match them as the owner of their work.” http://www.publicknowledge.org/node/1717

“Visual artists say they have a problem, that no one can find their work...” Actually we’ve never said any such thing. In fact we’ve explicitly said the opposite. Here’s just one example, from a sample letter we posted on our CapWiz site May 3:

“I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

“What if 1000 people can find me but one can’t? Why should that one person get a free pass to use my work?” http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11333406

“I can be located. My clients locate me all the time.” I don’t see how we could say it any more clearly.

Far from complaining that we can’t be found, an entire food chain of collateral markets currently exists to facilitate the process by which image buyers successfully find image sellers: Agents, commercial directories, trade shows, ads in trade publications, direct mail, web sites and email solicitations - all attest to the fact that hundreds of thousands of creators are engaged daily in the robust business of making themselves accessible to potential users.

All of these businesses will be hurt by a bill that legalizes the infringement of the work they trade in. None will be helped by placing on them the onerous and costly burden of registering and maintaining tens of thousands - or for photographers, hundreds of thousands - of individual copyright registrations, not to mention the impossible burden of trying to monitor infringements of their work, which can occur anytime, anywhere in the world.

The Orphan Works proposals under consideration would not create new ways for buyers to find sellers. It would merely allow opportunists to co-opt the existing markets of creators and of the collateral businesses that serve them.

As artists we already know this. Our chore is to hold this bill over until the next Congress, then work to counter the false logic of market failure created by the unwarranted conclusions of the Copyright Office’s Orphan Works Report.

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

*Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008

Tomorrow: A Bill Too Far

The Orphan Works Act of 2008 (H.R. 5889) has not been passed by the House of Representatives, but could be placed on the Suspensions calendar and passed by the lame duck session of Congress scheduled to re-convene this week. The Illustrators’ Partnership is asking lawmakers to hold the bill over to the next session of Congress, when rightsholders can have an opportunity to have their case heard before the full Judiciary Committee.