Orphan Works Opposition: Plan B

SEPT 27 Yesterday, in a cynical move, the sponsors of the Senate Orphan Works Act passed their controversial bill by a controversial practice known as hotlining.

With lawmakers scrambling to raise 700 billion dollars to bail out businesses that are “too big to fail,” the Senate passed a bill that would force small copyright holders to subsidize big internet interests such as Google, which has already said it plans to use millions of the images this bill will orphan.

With the meltdown on Wall Street, this is no time for Congress to concentrate our nation’s copyright wealth in the hands of a few privately owned corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel creators to risk their own intellectual property to supply content to these corporate business models. That means it would be our assets at risk in the event of their failure or mismanagement.

As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.

– Brad Holland and Cynthia Turner, for the Illustrators’ Partnership

NOW FOR PLAN B

We MUST try to stop the House Judiciary Committee from folding their bill (HR5889) and adopting the Senate version.

PLEASE EMAIL CONGRESS TODAY.
If you’ve done it before, do it again!

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Click on the link below, enter your zip code, and take the next steps.
Thanks to all of you who heeded the call to action yesterday.

http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Over 70 organizations oppose this bill, representing over half a million creators.
Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. The Illustrators Partnership Capwiz site is open to professional creators and any member of the image-making public.

Orphan Works: Why Bet Against Ourselves?

Several artists have asked me to respond to a recent letter they received from John Schmelzer, President of the Graphic Artists Guild. In it, he gave his reasons for GAG’s endorsement of the House version of the Orphan Works Bill. GAG’s statements are quoted verbatim and in full. My responses follow.
– Brad Holland, Sept. 14, 2008

GAG: This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law. But that’s not the reality.

Response: Artists have no way of knowing what GAG considers “the best possible outcome for this legislation” because their lobbyist has asserted attorney client privilege, saying she can’t disclose “sensitive stuff.” However, some facts are on the public record:

• In 2005, 42 groups signed the Orphan Works opposition paper submitted by the Illustrators’ Partnership to the Copyright Office.
• GAG was not one of those 42 groups.
• GAG filed their own paper, endorsing the bill’s “legislative blueprint.”
• According to mandatory disclosures filed with Congress, GAG has paid their lobbyist $140,000 to support the House version of the bill:
• http://www.opensecrets.org/lobby/clientsum.php?year=2007&lname=Graphic+Artists+Guild
• http://www.opensecrets.org/lobby/clientsum.php?lname=Graphic+Artists+Guild&year=2008

GAG: The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.

Response: Since when does “getting real” mean artists have to sit still for being robbed? And since when does treating art as a business mean making excuses for theft? Do you have to be “put out of business” before you react to harmful legislation? Over 60 groups agree that this bill violates international copyright law, undermines artists’ rights and devalues their work. If that’s “a scare,” it’s a real one.


GAG: Orphan Works will not go away, because too many stakeholders are behind it.

Response: Orphan Works legislation doesn’t need to “go away.” It needs to be fixed. Make it a real orphan works bill. As for the special interests behind this one, they’re not “stakeholders.” They’re opportunists. They want to cut themselves in on our markets, and they’ve drafted a bill that will let them. It’ll be the stockhouse story all over again – only this time, you’ll be penalized if you don’t give your work to these “databases.” Who are the real stakeholders in this fight? We are – and we shouldn’t succumb to Stockholm Syndrome and embrace the logic of the bill’s backers.


GAG: Delaying passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version.

Response: No, opposing it in a principled manner and explaining to lawmakers why it’s bad gives us a chance to get a better version in the next Congress. Telling you to take a bad bill because the next one might be worse is like telling you to cop a plea to a crime when you know you’re not guilty.


GAG: By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues.

Response: “Negotiating realistically” doesn’t mean capitulation. It means proposing serious amendments, as IPA did July 11: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html. As for having a “seat at the table,” what good does it do you if you don’t use it? If you give up the goal of protecting your rights to become part of the process, there’s a good chance you’ve become part of the problem.


GAG: For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle over Orphan Works.

Response: If the rights to your creative work aren’t worth fighting for, what is? Protecting your rights is always a “gamble.” But why bet against ourselves? As for that “position of respect” that “government circles” allegedly show us, if this bill is an example of it, maybe we should aim for the respect of being treated as worthy opponents.


GAG: The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get.

Response: It’s true that this bill is now so convoluted you’ll need a lawyer to explain it to you. That’s a big change from the current law, which protects your work by making it your exclusive property. This bill would force you to take active steps - like registering your work with a commercial database - not to actually protect it (because the database won't protect it) – but merely to preserve your right to sue an infringer in federal court.


GAG: Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper, gift wrap, shower curtains, etc., from being covered under the legislation.

Response: It’s not clear why artists, writers, photographers, songwriters and others should be grateful that “wall paper, gift wraps, shower curtains, etc.” have been exempted. Is art on coffee mugs more valuable than medical illustrations, news photos, political cartoons, book illustrations?

The textile industry asked for an exemption only for themselves. They condemned the bill, saying it would do great damage. But as soon as they got the exemption, they endorsed it! It’s easy to see why they wanted to be cut out – it’s a lousy bill. But once they got out, why try to inflict the damage on others? Was there a quid-pro-quo? Did Congress force them to endorse the bill in return for exempting them? And if you’re the party that brokered a deal like that, why would you want to take credit for it? If this bill is so bad that manufacturers have to be spared, how does anyone justify telling artists to just “get real” and take it as an object lesson?


GAG: The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work.

Response: First, let’s translate “Notice of Use” into plain English. It means “Notice of Intent to Infringe.” An infringer would file his name and a description of the so-called orphan with an archive. As currently written, this would be a Dark Archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless a.) you discover you’ve been infringed; b.) you pay a filing fee and sue the infringer in federal court and c.) the infringer asserts an Orphan Works defense. Only then can you file a request to see if your work is in the Dark Archive. In other words, the Notice of Use is of no probative value to you at all, unless by sheer luck, you find out that you’ve been infringed and feel like risking a lawsuit. As for making the Notice public, what does that mean? It means you’d have to start each day by reading through hundreds of thousands of text descriptions of infringed works to see if any of the so-called orphans sound like pictures of yours.


GAG: The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.

Response: To repeat: over 60 creators organizations oppose BOTH bills: http://capwiz.com/illustratorspartnership/home/


GAG:I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues.

Response: If it’s not going to have “a dramatic influence on how we do business,” then why should it wake anyone up? In fact, if this bill passes, in the United States, your work can be used “legally” without your knowledge or consent. We think that’s pretty “dramatic” and it could have a dramatic effect on your business – whether you’ve “awakened” or not.


GAG: 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.

Response: We don’t think this is a time to lecture artists about business practices. No person or group can stop individuals from making poor business decisions. But letting government pass bad laws that will affect everyone – good business people and poor ones – is another matter. How many other businesses would sit back and surrender to a law that undermined their fundamental property rights? Dry cleaners or real estate brokers wouldn’t stand for it. Why should we? There’s no point in being an artists rights organization if you won’t defend artists’ rights.


GAG: Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last.

Response: We don’t see any way an “artists rights group” can build a “strong and vibrant industry” out of this bill, unless they plan to become one of the commercial databases this bill would set up. Orphan Works is the wedge issue of the anti-copyright lobby. If it’s successful, they’ll use it to widen the breach. Unless artists stand up for their own rights now – while they still have them – having a seat at the Orphan Works table won’t give anybody any clout for getting those rights back later.


GAG: We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.

Response: “Developing better business practices and standards” is always a good idea, but used in the context of this bill, the term is code for something else. The Orphan Works Act would set up gatekeepers for every industry. The gatekeepers would get to draw up the checklist of things infringers would have to check off before they infringed your work. Of course, the checklist will be presented to artists as an obstacle course for infringers – but in fact, it’ll be an obstacle course for YOU. Because it means you’ll have to take certain specific steps to preserve your right to sue infringers, and any clerical failure on your part, any oversight, will void your options.

There may be valid reasons for developing practices and standards for using the work of artists who have died or abandoned their copyrights; that would be a true orphaned work policy. But to warn working artists that they have to submit to new bureaucratic business practices so that potential infringers can freely use their unidentified works is a fundamental embrace of the anti-copyright agenda. That’s the truth and it should be understood as such.

- Responses by Brad Holland

Please feel free to forward these responses to any interested party.

SBA Orphan Works Roundtable Webcast Stream

The webcast of the Orphan Works Roundtable is now available here:

https://vimeo.com/channels/artistsrights

    "A Seminal Event"
    "Unprecedented"
    "The most effective advocacy in opposition to these bills 
      I have seen."
    "The Gathering of the Tribes"

These are some of the comments we've received from last Friday's Roundtable on Orphan Works, conducted by the Small Business Administration. Artists, photographers, songwriters, musicians, writers and spokesmen for collateral businesses all made this the best attended Roundtable the SBA has conducted.

As one member of the audience said, perhaps the only good thing about the Orphan Works bill is that it's brought so many creative communities together. The full house is the best measure of the concern creators have about this effort to undermine copyright law.

Here are some of the key points to emerge from the discussion:

    • The high cost of digitizing and registering work with commercial databases will make compliance impossible for most artists.

    • This will cause billions of unregistered works to fall into the public domain.

    • To make money, commercial databases will have to promote and facilitate infringement.

    • Infringer-friendly databases will compete with artists for clients.

As one panelist summed up: this bill "will socialize costs and privatize profits."

If you missed this important industry event, please watch it now at your convenience.

You may review the agenda, the panelists and their biographies on the Illustrators' Partnership blog:

http://ipaorphanworks.blogspot.com/2008/08/80808-sba-hearing-on-orphan-works.html

More Groups Condemn Controversial Orphan Works Bills

The California Copyright Conference and the Association of Independent Music Publishers have announced a joint position paper condemning the Orphan Works bills. In a five page paper they conclude: “The Orphan Works bills are deeply flawed and would have serious unintended but far reaching adverse effects.”

“The final report is the result of a collaborative effort from a panel of distinguished experts who bring together differing viewpoints on copyright matters,” says Cheryl Hodgson, current President of the California Copyright Conference (CCC). “The unanimity of the voice with which they have chosen to speak underscores the reason all copyright owners should read and understand the issues.”

These bills “threaten to erode fundamental protections for copyright authors and owners,” the paper begins. The bills will “encourage copyright infringement and objectionable uses across the full spectrum of protected artistic works”:

In the process of “helping” appropriate other people's personal property, the legislation promotes the incremental dismantling of one of our nation's primary economic growth engines. The Internet, computer and consumer electronics industries utilize vast amounts of copyrighted works to attract customers to their websites, from which they derive enormous profits from advertising and subscription fees, These industries have long sought to eliminate copyright protections and to avoid paying for the content they use to lure consumers.

“The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years,” says attorney Steve Winogradsky, past President of both the California Copyright Conference and the Association of Independent Music Publishers (AIMP). “It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster.”

View Report http://www.brandaideblog.com/pdf/Position_Statement.pdf

More than 60 groups representing illustrators, photographers, musicians and writers now openly oppose this controversial revision of US copyright law. Over 112,000 letters have been sent to lawmakers from the Illustrators Partnership advocacy site.

Don't Let Congress Orphan Your Work
Write Congress and fight for your copyrights

Tell the House Judiciary Committee members not to support this controversial revision of copyright law. Send this e-mail message now: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11618481

Orphan Works Update July 15

The Orphan Works Mark-up for this week has been postponed. This gives us more time to email and fax members of the House Judiciary Committee. Write and ask them to support the amendments submitted jointly by the Illustrators' Partnership, the Artists Rights Society and the Advertising Photographers of America.

http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

These amendments would:

• Insure that the bill will only affect true orphaned work;
• Insure that the bill will not violate international trade agreements;
• Insure that the bill will not take effect until a market impact survey concludes it will not harm existing commercial markets.

Otherwise, ask them not to vote this bill out of committee until Congress can hold proper hearings into the harm it will do to small businesses, individual creators and ordinary citizens.

Our sample letter to House Judiciary Committee members can be deep linked here: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11618481

Contact information for House Judiciary Committee members can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/house-judiciary-committee-contact-list.html

View the Orphan Works Forum Webcast from the Society of Illustrators:
http://www.unitedpgremote.com/society/soi_2008_05_04.html

Orphan Works Markup

We've had word that the House Judiciary Committee may mark-up the Orphan Works Bill this week. This is the session where Committee Members will propose, accept and reject amendments to H.R. 5889. After markup, the bill could be reported out of the House Committee and go to the floor for a vote.

We've submitted several critical amendments for consideration: These would limit the scope of the bill to affect only true orphaned work. Unless such amendments are adopted, we believe the bill should not be reported out until its impact on small businesses can be determined. Here's our summary of the issues at stake in the House version of this bill:

Q What is the Orphan Works Act?
A: A proposed amendment to copyright law that would impose a radically new business model on the licensing of copyrighted work.

Q: How would it do that?
A: It would force all creators to digitize their life's work and hand it over to privately-owned commercial databases or see it exposed to widespread infringement by anyone, for any purpose, however commercial or distasteful.

Q: How would it hurt me if I didn't register my work?
A: The bill would let infringers rely on for-profit registries to search for your work. If your work is not in the databases, it's a potential "orphan."

Q: What about my unpublished work?
A: The bill would apply to any work, from professional paintings to family snapshots, home videos, etc., including published and unpublished work and any work ever placed on the internet.

Q: How would these databases work?
A: No one has yet unveiled a business plan, but we suspect they'd operate like stock houses, promoting themselves as one-stop shopping centers for licensing art. If you've registered your work with them, they'll probably charge you maintenance fees and commissions for clearing your work. If you're a publisher or art director, they'll probably charge you search fees. If you're an infringer, they'll probably charge you a search fee and issue orphan certificates for any unregistered work you'd like to infringe. We assume different registries may have different terms, and any start-up terms will of course be subject to change.

Q: How will the bill affect the market for commissioned work?
A: It will be a gold mine for opportunists, favoring giant image banks over working artists. Some companies will probably sell access to orphans as royalty-free work -- or they'll harvest orphans and bundle them for sale as clip art. Other companies can harvest orphans, alter them slightly to make "derivative works" and register the derivatives as their own copyrighted product. Freelancers would then be forced to compete against their own lost art - and that of their colleagues - for the new commissions they need to make a living.

Q: But the bill's sponsors say the bill is just a small adjustment to copyright law.
A: No, it's actually a reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your legal obligation to make your work available.

Q: But isn't the House bill an improvement over the Senate version?
A: Only for those who intend to operate commercial databases. These registries will exist to make money. To make money, they'll have to do a lively business in clearing work for infringements. That means making their databases infringer-friendly.

Q: But isn't the House bill better because it requires an infringer to file a Notice of Use, documenting their intent to infringe?
A: The House bill creates a very low threshold for infringers to meet. They'd only have to file a text description (not the image itself) of the work they want to infringe, plus information about their search and any ownership information they've found.

Q: But won't that let artists consult the archive to see if their work has been infringed?
A: No, as currently written, the Notice of Use is a dark archive, which means you won't have access to it. If someone infringes your work and has filed a Notice of Use, you wouldn't know about it.

Q: Then how would I know if my work is in the Dark Archive?
A: You wouldn't, unless a.) you discover you've been infringed; b.) you sue the infringer in federal court; c.) the infringer asserts an Orphan Works defense. Then you can file a request to see if the infringer has filed a Notice of Use to infringe your work.

Q: Then what good does it do me for the infringer to file a Notice of Use?
A: It's of no probative value to you at all unless you go to court. And if you do, you'd better be sure of winning because otherwise, without the possibility of statutory damages and attorneys' fees, it will be too expensive for you to sue. If the Notice of Use helps anyone, it actually helps the infringer: it lets him prove in court that he followed the prescribed protocol to "legally" infringe your work.

Q: Then shouldn't we ask Congress to change the Dark Archive to an open one?
A: This would still place an impossible burden on you. Can you imagine routinely slogging through a "lost and found" containing millions of text descriptions of works to see if something sounds like one of the hundreds or thousands of illustrations you may have done?

Q: So should the infringement archive be changed to display images rather than text descriptions?
A: If so, you'd have a come-and-get-it archive for new infringers to exploit works that have already been identified as orphans by previous infringers.

Q: The bill's sponsors say the House version includes specific instructions on the requirements for diligent searches.
A: No, read the bill. It's full of ambiguous terms like "reasonable" and "diligent" that can only be decided by courts on a case-by-case basis. That could take a decade of expensive lawsuits and appeals. How many millions of copyrights will be orphaned before we learn how the courts ultimately define these vague terms?

Q: Then what can we do to improve this bill?
A: We don't believe the bill can be patched up to mitigate its harm to creators. The Orphan Works matter should be solved with carefully defined expansions of fair use to permit reproduction by libraries and archives, or for family photo restoration and duplication. Narrow exceptions like these would also meet the needs of other orphan works usage without violating artists' rights as defined by the 1976 Copyright Act, The Berne Convention and Article 13 of the TRIPs Agreement. These copyright-related international trade treaties are not just a matter of law. They codify longstanding business practices that have passed the test of time.

Q: What can we do now to oppose this legislation?
A: If you're opposed to the House bill in its current form, contact members of the full House Judiciary Committee. Ask them to adopt our amendments limiting the scope of the bill to affect only true orphaned work. Tomorrow, we'll email you a short basic letter which you may use as a template.

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

Over 60 organizations are united in opposing this bill in its current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Don't Let Congress Orphan Your Work
To use the Orphan Works Opposition Website just go to this link:
http://capwiz.com/illustratorspartnership/home/

Put in your zip code and follow the instructions. Your letters will be addressed and sent automatically. It takes less than 2 minutes to fight for your copyrights.

Orphan Works Update: The House Bill and Commercial Registries

Backers of the House version of the Orphan Works bill are now asking artists and photographers to oppose the Senate bill unless it’s amended to contain at least the “minimum provisions” that appear in the House version.

Although they don’t say so, opposing the Senate bill in this manner is a vote for the House bill.

We’ve been asked to explain why:
The Senate bill is similar to the bill we opposed in 2006. The House bill (H.R. 5889) is the result of a year and a half of closed door negotiations between Congress and representatives and lobbyists for special interest groups. These groups have agreed to either endorse the House bill or remain neutral to insure its passage.

The House bill endorses the concept of coerced “voluntary” registration with commercial databases and seeks to make these databases infringer-friendly.

– It would require infringers to file a simple “notice of use” before they infringe.

– It calls for an archive of the notices to be maintained by the Copyright Office or an approved third party

Why do backers of the House bill want these databases to be infringer-friendly?
Because to thrive, commercial databases (registries) will have to do a robust business in rights-clearing and orphan certification. That means encouraging infringers to infringe.

How will these registries work? No details have been given, but experience with image banks suggests the following:

For unregistered work: infringers will use the registries to identify pictures that aren’t registered. Infringers will probably pay the registry a search fee, then use or market the “orphans” like royalty-free art.

For registered work:the registries will act as a kind of stock house: Users will go to them for one-stop shopping to clear rights to your pictures. The registry will probably charge you a commission when they do.

In other words, urging Congress to pass the House bill makes very little sense to us unless your business or organization expects to become a commercial registry. We believe the only way to oppose these bills is to oppose them both.

If you agree, now’s the time to write Congress or write again.

Don't Let Congress Orphan Your Work
You can urge Congress to oppose these bills by linking here to a special letter.
Tell Your Senators and Representatives to Oppose the Orphan Works Act at:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11442621