Orphan Works: A Lame Duck Countdown, Part IV

Moving The Cats' Food

The Copyright Office received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets and concluded that government should “incentivize” creators to register their work with for-profit registries as a condition of protecting their copyrights.

Officially, this goal is expressed benignly on page 106 of the Copyright Office’s Report on Orphan Works http://www.copyright.gov/orphan/orphan-report.pdf:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector...” (Emphasis added)

But later, in defending their proposal, the Report’s principal author stated the case in more coercive terms. Speaking at a Congressional Seminar March 31, 2006, Jule Sigall of the Copyright Office noted that visual artists had failed to “collectivize” to create such registries. And comparing artists to cats who can’t be herded, he said:

“You can’t herd cats, but you can move their food... It’s really what kind of incentives, what kind of pressure and how you put on the right pressure.”*
http://www.pff.org/events/pastevents/033106orphanworks.asp

To which another panelist, the lobbyist for Getty and Corbis, replied: “The tough love theory of copyright policy. We’ll take the food away and then you’ll be motivated to go find where it is.”*

But putting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: “The enjoyment and the exercise of these rights shall not be subject to any formality.” (Emphasis added) http://www.law.cornell.edu/treaties/berne/5.html

This 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 rightsholder.” http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm

And as legal scholars Jane Ginsburg and Paul Goldstein have noted in their orphan works comments:

“[T]hese 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 (Boldface added). http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf

The backers of the Orphan Works bill [H.R. 5889] argue that their proposals won’t violate these agreements because the bill won’t explicitly legislate formalities. It would merely expose to infringement the work of rightsholders who don’t impose formalities on themselves. Just moving the cats’ food.

Contrast that sentiment with the comments from one of our country’s leading illustrators, C.F. Payne, who submitted his thoughts to the Small Business Administration Roundtable on Orphan Works last summer:

“[The Orphan Works bill] promises to protect artists’ work by pressuring them to register every single work of art with commercial databases...This would impose an impossible burden of compliance on me. I doubt that I could participate. Yet if I do not, I would be exposing my life’s creative output to unfettered infringement. This is not in the spirit or intent of copyright and it is not the way our government should pressure creators to deal with their private property.

“I believe myself to be a steward of the best traditions of our craft...

“For thirty years I have worked to build a body of work I can pass on to my children. I hope it will be a source of inspiration for others. For twenty years I have taught, hoping to pass on what I can to the next generation. And, for 10 years I have worked with other illustrators through the Illustrators’ Partnership to see that our business concerns are presented in a professional and responsible way.

“I do not want it said that we in our generation failed to do the necessary work to ensure future generations the opportunities they are entitled to for a fertile career. If government does not emasculate copyright law, my body of work will sustain me for the 25 or so years left in my career. But I have students with hopes for 50 plus year careers. They want to provide for their children with their art.

“In addressing this Roundtable, I hope to have my statement heard by lawmakers. So to them, I would like to say that in opposing this legislation we are not seeking a favor. We are not looking for any special treatment from the law or government. Rather we are looking to Congress for the sense of fair play established by our Constitution. How Congress decides this legislation will be a measure of how we as a nation treat the individual and the individual’s property.”
http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

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

*Quotes from page 24 of the transcript of “Orphan Works: A Search for Solutions,” Congressional Seminar hosted by the Progress and Freedom Foundation, March 31, 2006. Mr. Sigall’s full title at the Copyright Office was Associate Register for Policy & International Affairs http://www.pff.org/events/pastevents/033106orphanworks.asp

Tomorrow: Through the Looking Glass: The False Logic of “Market Failure”

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 next 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.