Orphan Works: A Lame Duck Countdown, Part III

215 Letters

Nearly 300 million people live in the US. How many of them does it take to make an “orphan works problem”? Apparently 215 (give or take a few). That’s the only conclusion we can draw from the Report on Orphan Works released by the Copyright Office in 2006.

In their testimony to Congress, the Copyright Office stated they had received “over 850 letters” to their Orphan Works Study. Yet they failed to note that 600 of those letters had to be dismissed as irrelevant or too vague to determine their relevance to orphaned work.

That information can be found, if you look for it, in their own Report on Orphan Works. http://www.copyright.gov/orphan/orphan-report.pdf:

“The Office received an overwhelming response (by comparison to past studies), receiving 721 initial comments, and 146 reply comments.” - Page 17

Or a total of 867 letters. So much for the talking point. But read on to page 21:

“A large portion of the comments (about 40%) did not identify a specific instance where a copyright owner could not be identified or located. Another portion (10%) presented enough specific information for us to conclude that the problem presented was not in fact an orphan works situation. (Italics in original.)

“Still, approximately 50% of comments did contain information that could fairly be construed as presenting an orphan works situation, and a significant number of those comments (about 45%, or about 24% of all comments) provided enough information about a specific situation for us to conclude that it presented an orphan works situation.” (Emphasis added)

In other words, 24% of 867, or about 215 letters.

On the basis of these letters - out of a country of nearly 300 million people, Copyright Office attorneys have deduced an orphan works “problem” so serious that US copyright law must be be rewritten behind closed doors and rushed through Congress without an open and transparent public debate.

And remember:

• Many who responded to the Orphan Works Study no doubt thought they were contributing to a study of true orphaned works – not promoting a bill that would legalize the commercial infringement of new work from the moment it was created.

• The “interested parties” who worked with the law students in drafting the bill’s “legislative blueprint” were well aware of the Copyright Office study and filed comments supporting the recommendations they had worked on.

• But individual artists, design firms, and other small businesses never knew the study was being conducted and therefore had no voice in the study.

• An exception was the statement submitted by the Illustrators’ Partnership, signed by two thousand artists and endorsed by 42 national and international visual arts organizations. It spelled out the need for maintaining existing copyright protections and warned that a bill drafted too broadly would undermine intellectual property rights and spread uncertainty in commercial markets. Yet although the Orphan Works Report was 127 pages long, the Copyright Office never found space to mention that statement. http://www.copyright.gov/orphan/comments/OW0660-Holland-Turner.pdf

“In other words,” writes David Rhodes, President of New York’s School of Visual Arts, “those who believe there is no [Orphan Works] problem are defined as not serious and dismissed out of hand. As a gauge to serious, some other examples are instructive. When the Federal Communications Commission tried to change ownership rules to allow further media conglomeration, a serious problem, it received millions of negative comments. More recently when the Federal Reserve asked for comments on abusive credit card practices they received 56,000 comments. Obviously, people believe that these are serious issues. Most people simply do not believe that “Orphan Works” are a serious issue.” http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

Yet based on these 215 letters, the Copyright Office report set off an Oklahoma land rush for orphan works domain names. According to an excellent paper by the Advertising Photographers of America:

“Within two weeks of the issuance of the [Orphan Works Report January 23, 2006], nearly all the domain names associated with orphan works were registered by commercial interests in preparation for the profit-taking that will result if this legislation is passed.” – Page 10, The “Come-And-Get-It” Factor, The Orphan Works Dilemma, by the Advertising Photographers of America http://www.apanational.com/i4a/pages/Index.cfm?pageID=3864

Come-and-get-it, indeed.

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

Tomorrow: “Meow” or Moving the Cats’ Food

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.