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.

Senate Hotline Revisited

Yesterday, many of us received a letter from our Senator, one of the most prominent lawmakers in the country, expressing his support for strong intellectual property rights protections as a necessary stimulus to creativity and entrepreneurship.

He stated that the Shawn Bentley Orphan Works Act of 2008, S.2913 “is currently being carefully considered by the Senate,” and he assured us:

“Members of my staff have met with representatives of artists and small business owners who have expressed many of the same concerns you mentioned. I will continue to closely study developments on this bill and I will work with both my Senate colleagues and the...artist community to ensure that any bill that is ultimately passed appropriately balances these competing concerns.”

We’ve written to the Senator to inform him that the Shawn Bentley Act passed in the Senate on September 28, 2008, by unanimous consent, including his.

Frankly, we don't blame the Senator for not knowing that he's allegedly consented to a bill that would strip his constituents of their intellectual property rights without due process. Considering the way this controversial bill was drafted behind closed doors and passed by hotline, we suspect many Senators aren’t aware that they’ve “consented” to this radical change to U.S. Copyright law either.

This makes it all the more important that the House not pass their version of this bill (H.R.5889) by a similar legislative maneuver.

Orphan Works legislation should be held over until the next Congress and subjected to an open and transparent public debate. Laws affecting the intellectual property rights of all citizens should not be brokered by lawyers and lobbyists in backroom deals.

Monday the Senate will convene for a lame duck session. A spokesman for House Speaker Pelosi confirmed yesterday that the House will convene on Tuesday. For now, the House is where we need to focus our attention.

House sources continue to assure us that Orphan Works is not on the agenda. However every prior effort to pass the bill by legislative maneuver was prefaced by similar assurances, so we believe it’s in our best interests to stay vigilant. We’ll update you as we learn more.

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

Starting Monday we’ll conclude our series of little known facts about this legislation.

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.

Orphan Works: The Big Internet Factor

On Thursday October 2, each member of the House of Representatives received the following letter:

October 2, 2008

Dear [Member of Congress],

As lawmakers struggled Friday to prop up private financial institutions that are “too big to fail,” the Senate quietly passed a bill that would allow a few giant internet firms to swell by absorbing copyright titles from independent creators, small businesses and average citizens around the world. As Market Watch reported Sept. 29: While members of Congress were focused on an economic rescue package, “internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory.”

We are writing to express our grave concerns about this. The Senate Orphan Works Act (S 2913) was passed Friday by the controversial practice of “hotlining” and referred to the House Judiciary Committee. We’ve been warned that the House may abandon its own bill (HR 5889) and adopt the Senate’s. If that happens, this legislation will negatively affect artists, writers, photographers, songwriters, musicians, performers, craft and folk artists, Native American artists, in fact, creators of all disciplines, professional and amateur, both in the U. S. and worldwide.

We believe these bills mask an effort by Big Internet companies to profit by undermining existing global intellectual property rights protections. These protections currently allow small creators to control the use of their art, photographs, writings, videos or music. The proposed legislation would undermine these protections in two ways. First, it would remove any effective penalties for copyright infringement wherever a user is unable to locate an author by a vaguely defined “qualifying search.” And second, it would “pressure” copyright holders to subsidize the start-up of privately owned commercial databases by exposing to potential infringement the work of any copyright owner who does not provide these databases with access to his commercial inventory, metadata and licensing information. Since no rational business owner would voluntarily turn over his business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners.

Undermining Small Businesses
The lobbying efforts to promote this legislation pit small entrepreneurs and artists of all kinds against some of the largest and most well-financed Internet powerhouses in America. One in particular will serve to document our concerns. Google, one of the largest backers of the legislation, has already stated their intent to profit from the works the bill will orphan. In 2005, three years before the current legislation, Google told the U.S. Copyright Office “[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range....”[1 Footnote]

In March 2005, Google’s top lobbyists submitted comments to the U.S. Copyright Office’s Orphan Works Study. In it, they argued: a.) Orphan Works “represent an untapped wealth of information that should be made accessible to the public”[2 Footnote] (presumably through Google’s search engine and advertising programs); and b.) owners of orphan works could more effectively monetize their creations if they “enrolled in [Google’s] publisher program, and could receive money from advertising revenue.”

Google also commented that the Copyright Office’s current registration database, which covers works registered after 1978, does not provide contact information for locating copyright holders, adding: these records are not “readily queried through automated means.” Google sees this as a problem: it means a user looking for a copyright holder would have to conduct a routine search of records using traditional sources of information -- sources Google does not own or control. Such diligent traditional searches do not conform to the rapid automated searches that fit Google’s “one million works” goal.

In making this argument however, Google’s lobbyists presented the case as if certain procedures were not already in place at the Copyright Office. Google proposed that orphan works data “be accessible and searchable by automated means as well as through a web browser or other methods.” But in fact this system already exists for works registered after 1978 (see Copyright Office Circular 22). And Google suggested that any work designated as an orphan by one infringer should be free for others to infringe in good faith, without risk of liability.

Based on these comments and on Google’s subsequent lobbying efforts, it is obvious that Google believes passage of the current orphan works legislation would allow it to harvest millions of copyrighted works free from potential liability. Indeed it would even allow Google or similar companies to capture orphaned copies of any individual’s works, alter the works slightly to create “derivatives,” then copyright the derivatives as their own intellectual property. These companies could then add that work to their massive commercial databases and profit by licensing it to third parties - or by providing free access to the public in return for advertising revenues. In effect, we fear this bill would force creators to subsidize potential competitors by supplying them with the content they would need to compete.

No Economic Impact Analysis
It’s troubling to us in the creative community that anyone would seek to impose these measures on the $187 billion licensing industry. But equally disturbing is the surprising $3 million contribution Google made to the Library of Congress for its “World Digital Library” project in November 2005. This donation was made just as the Copyright Office was concluding its Orphan Works Study and preparing its final report to Congress. [3 Footnote]

As you know, the Library of Congress oversees Copyright Office activities. And while the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest and perhaps only private sector contributor.

Then in early 2006, only a few months after Google’s donation, the Copyright Office submitted its Report on Orphan Works. In it, they recommended changes to copyright law that would dramatically affect commercial markets. Yet the Copyright Office had studied the specific subject of orphaned work. They did not solicit, nor did they receive, relevant information about the workings of commercial markets. This fact was summarized in a joint position paper published July 15, 2008 by the Association of Independent Music Publishers & the California Copyright Conference:

“In 2004, The Copyright Office initiated a theory, with the enthusiastic support of the anti-copyright lobby, that the public was being harmed because it did not have enough current contact information for authors and owners. The Copyright Office then requested orphan works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation of how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.” [4 Footnote]

Despite this lack of information about commercial markets, the Copyright Office asserted they had found a widespread “market failure” and recommended sweeping changes to copyright law. The changes included many that Google had asked for.

Google’s special interest in this issue should not be overlooked. In March 2007, the company filed a mandatory 10-Q Filing with the Securities and Exchange Commission in which they acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business [italics added].”[5 Footnote]

Google’s involvement surfaced again March 13, 2008, when the Register of Copyrights, Marybeth Peters, testified before the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. She strongly endorsed the current legislation and recommended that private technology companies play a role in ensuring “best practices” in the creation of orphan works registries. She acknowledged a December 2007 technology briefing for Congressional staffers hosted by the Copyright Office, which Google attended to showcase tools and services to “help alleviate the orphan works problem.”[6 Footnote]

We find it deeply disturbing that the U.S. Copyright Office has so clearly and unambiguously advocated legislation that will privilege large commercial interests such as Google at the expense of creators and the countless small businesses that serve, and are dependent on the creative community. We find this even more troubling in light of Google’s substantial contribution to the Library of Congress at a time when the Copyright Office was preparing its Orphan Works recommendations -- and at a time when Google had acknowledged to the SEC that its financial well-being is dependent on a business model that has already engendered multiple lawsuits for copyright infringement totaling billions of dollars.

Google and other large database, advertising and search engine companies clearly have a major financial stake in the weakening of copyright law through new legislation. The Orphan Works Acts, if enacted in either of its current forms, would solve the problem that has vexed so many start-up internet companies: how to make money by giving away free content. By opening the door to potentially billions of “permitted” infringements of protected copyrights, this legislation would allow Big Internet to create an entirely new business model, by licensing content they don’t have to pay for — through the digitizing, archiving and monetizing of the intellectual property of ordinary citizens.

A Bill Too Far
We believe the proposed Orphan Works lelgislation, as written, go far beyond current concepts of Fair Use. As Chairman Berman of the House Subcommittee on the Courts, the Internet and Intellectual Property acknowledged on March 13 2008, the term orphan works, as applied to this legislation, is actually “a misnomer.” In fact, these bills are not designed to deal with the use of true orphan works by museums, libraries and archives. Instead they seek to grant any potential user the right to use any work by any creator for any purpose, so long as the user finds it sufficiently hard to locate the user – a standard so broad it would re-define the meaning of copyright itself. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder. The consequences will be far-reaching, long lasting, perhaps irreversible and will drastically affect what it means to create and own intellectual property. In addition, it could disrupt trade relations with rights holders in Europe, who are fearfully protective of their works’ copyrights.

On August 8, 2008, The Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. This was the first effort to assess the economic impact of this legislation on the creative community. [7 Footnote] Panelists agreed that it would drastically change copyright law, and stressed that the high cost of compliance would be a prohibitive burden for artists to bear, thus exposing valuable inventories to commercial infringement. All agreed that the bills would have a profoundly negative impact on creators’ rights and markets.

We also note that on August 30, 2008 leading copyright scholar Jane Ginsburg of the Columbia Law School published Recent Developments in US Copyright Law: Part I – “Orphan” Works.
<8> In this scholarly article, Professor Ginsburg raises several critical questions about the legislation, noting that certain provisions appear to violate Article 10.1 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She states that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works; and she adds that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.”

As small business owners, sole proprietorships and individual creators, we lack the promotional and lobbying muscle of Big Internet companies. But as we spend our own time and money to call attention to the defects of the current legislation, we stress that we would support a bill that precisely defines the category of true orphan works and sets a proper bar for making the requisite showing of due diligence by potential users. But we believe the broader interests of society are served best, when those exceptions are limited to “certain special cases,” as defined both by Article 10.1 of Berne and Article 13 of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). As Professor Ginsburg notes in her article: “The ‘progress of knowledge’ to which US copyright aspires is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.”

In the interests of continuing conditions conducive to creativity in the US – and on behalf of millions of small creators, small businesses and average citizens, we respectfully urge members of the House not to adopt the Orphan Works Act of 2008 (H.R. 5889), nor to adopt the Senate version S2913.

Sincerely,
Brad Holland, Artist
Co-Founder, Illustrators' Partnership of America

Cynthia Turner, Medical Illustrator
Director, Illustrators' Partnership of America

Constance Evans, Artist
Executive Director
Advertising Photographers of America

Gerald Colby, Writer
President, National Writers Union

Kathleen Bitetti, Artist
Executive Director, Artists Foundation

Don Schaefer, Photographer
Co-Administrator, pro-imaging.org

Nick Anderson, Editorial Cartoonist
The Houston Chronicle
Immediate Past President
The Association of American Editorial Cartoonists

Jeff Keane, Cartoonist
President
The National Cartoonists Society

Ted Rall, Cartoonist
President
The Association of American Editorial Cartoonists

[1] http://www.copyright.gov/orphan/transcript/0726LOC.PDF

[2] http://www.copyright.gov/orphan/comments/OW0681-Google.pdf

[3] http://www.loc.gov/today/pr/2005/05-250.html

[4] http://www.brandaideblog.com/pdf/Position_Statement.pdf

[5] http://investor.google.com/documents/20070331_10-Q.html

[6] http://www.copyright.gov/docs/regstat031308.html

[7] http://videos.cmitnyc.com/asip.html

[8] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361

Orphan Works: “We Are Our Work”

These are excerpts from written statements submitted by the Illustrators’ Partnership to the Small Business Administration September 16. The SBA Roundtable is the only forum so far conducted by the government to consider the economic impact of the Orphan Works Act on creators. The Roundtable was chaired by Tom Sullivan, Director of the Office of Advocacy of the SBA. It was initiated by the Illustrators’ Partnership, The Artists Rights Society and the Advertising Photographers of America. It was conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. Seventeen panelists participated. Scores of others submitted written papers.

August 8, 2008: “We’re here today to speak as small business owners. Yet for most of us, art is something more than a business. Artists become artists because we want to practice alchemy - to turn the lead of experience into something that doesn’t tarnish or rust. At the heart of creativity is independence. We’re here today to defend our independence.”
– Brad Holland, Artist

“The network of contracts and agreements, the very fabric of the business of copyright that surrounds the marketing of images, has been overlooked by this legislation. This threatens the entire commerce of visual art licensing.”
– Cynthia Turner, Medical Illustrator

“Licensing is now a $187 Billion dollar industry...and most of the providers of the creative content are small business owners just like me...the [Orphan Works] changes in the copyright law... will put me and other small business owners in jeopardy of losing revenue that the licensing of our art generates for us.”
– Cheryl Phelps, Illustrator, Designer, Art Licensor, Educator

“If our government approached any other type of business and told them they could no longer own what makes their business valuable, that their intellectual property including sourcing information, trade secrets, collected knowledge of their industry and so on was now no longer theirs to own and use to prosper . . . imagine the outrage.”
– Brenda Pinnick Owner, President, Brenda Pinnick Designs, Inc.

“It is clear that this piece of legislation is part of an anti-copyright offensive waged by those who maintain that copyrights are obstacles to creativity and the free flow of ideas, as if copying, mixing, sampling and appropriation are the essence of the creative process.”
– Dr. Theodore Feder President, Artists Rights Society

“As a young artist, I owe a lot of my professional success to the internet... Copyright law, as it stands, enables us to share work with our fans online, while knowing it won’t be stolen by large corporations. What the Sean Bentley Orphan Works act does is remove this protection.”
–“Orphan Works Act-Unintended Effects,” by Molly Crabapple, Artist

“If this legislation passes, it would mean a return to pre-1976 U.S. Copyright Act when many writers' works fell into the public domain because they could not afford to comply with the formalities of registration as a condition of copyright protection.”
– By Gerard Colby President, National Writers Union/UAW Local 1981

“The financial (and technical) requirements of this Bill truly assume that an artist is “guilty of failing to comply until proven innocent.”
–“The Orphan Works Act: A View From the Trenches,” by attorney Tammy L. Browning-Smith, J.D., LL.M

“Would you rather Charlie Parker had a law degree and a well maintained data base or his bird qualities? Would you rather see Jimmie Hendrix bend his head around “Reasonably Diligent Search” or bend a string from here to eternity?”
–“Orphan Works,” by Gene Poole, Songwriter and Musician

“I know of no other trade or product that requires its creators to register with one government agency and two private ones in order to protect their rights and property from theft.”
RE: H.R. 5889 and S. 2913, the Shawn Bentley Orphan Works Act ,” by Don Schaefer Don Schaefer Studio

“ [T]he concept of creating an inclusive, cost effective database for imagery is impossible. I represented 400,000 images, had 500 portfolios of artists online, verified listings of 50,000 graphic artists, and I know the time and cost for creating databases. Not possible. Not feasible. Not cost effective. And if there were multiple, smaller databases, not workable.”
– “Orphan Works Compliance: An Impossible Burden for Small Businesses,” by Alexis Scott, Publisher of The Workbook and workbook.com

“The ‘unknown’ entities that will be developing and running the yet nonexistent searchable databases...are set to gain millions from the revenues our artwork can bring them!
– “Why I oppose the Shawn Bentley Orphan Acts of 2008,” by Gail Green, Gail Green Licensing & Design Ltd

“I fought for the rights of Superman's creators, Jerry Siegel and Joe Schuster. Others made millions while Superman's creators lived in near poverty. Jerry was a clerk and Joe was a legally blind man who lived in his brother's apartment, slept on a cot and worked as a messenger. I met and fought for their small remaining rights when they both turned only 60 years old...The battle took months and the settlement was meager, but it let the men live the remaining years of their lives with dignity. You know what they cared about most? They cared about having their names, once again, associated with their character, Superman! Why? Because it was what they were as people. They were their work. Why do we have copyright law? Because we wish to protect people and their creations, even if they are ‘hard to locate.’”
– “Orphaned Works Legislation,” by Neal Adams, Artist

“Clearly, if an image isn’t ‘found’ in a private registry, it is fair game according to your law. That’s millions, maybe hundreds of millions of images online right now that are not registered, have no statement of copyright or ownership, and will likely not be registered or removed by the time this legislation goes into effect.”
– Harry S. Murray, Letter to Ms. Marybeth Peters Register of Copyrights United States Copyright Office

“How would a person from Arkansas or Nigeria know about this law, that it even exists, that it affects him, that he has to register in an American registry for a fee, to protect his wedding picture or pictures of his children from being used by an American corporation or a non-for-profit-organization that may reflect values that are against his religion or his ethics which could add insult to injury?”
– Andre Cornellier, Copyright Chair and Ewan Nicholson, President/ Canadian Association of Photographers and Illustrators in Communication

“No member of our Society would have the time or financial means to track any unwarranted, illegal activity on the internet, let alone pursue claims against multiple parties that may avail themselves of any artwork. Nor would any illustrator have the resources to register significant collections of current and past works with a proposed system that would offer little or no protection.
– Frank M. Costantino, ASAI, SI, JARA, FSAI Co-Founder, American Society of Architectural Illustrators/ Vice-Chairman, American Society of Illustrators Partnership

“In 2006, I registered 58,731 images, and in 2007, 71,919 images. If a registry charged $0.50 per image to submit and process, I would have to pay $29,365.50 to protect my 2006 images, and $35,959.50 to protect my 2007 images, for just those years.
–“ Testimony Concerning How the Proposed Orphan Works Bill Will Economically Impact Photographers,” by John Harrington, Professional Photographer

“Total scanning, personnel, overhead= $262,560. Additionally, I would have to supervise the operation, losing about two months per year.”
– Photographer MK (NY) in response to internal poll by Advertising Photographers of America

“Even if the scanning charge were $ .25 per image, which is FAR below the current scanning prices available today, That would cost me approximately one half million dollars ( (2,500,000 images x 80%) x .25= $500,000--).”
– Photographer GF (SC) in response to internal poll by Advertising Photographers of America

“In addition to the cost of getting images ready for input into one of these registries/databases, there is the time/cost of uploading these images... which could take as long as it took to digitize the images...add another 20+ years, or another $859K.”
– Photographer RR (NY) in response to internal poll by Advertising Photographers of America

“If these fees were $1 per image, I would incur an additional $1,000,000 in registration expense.”
– Photographer JS (CA) in response to internal poll by Advertising Photographers of America

“Scanning would be over 2 million dollars to include keywording from an outside source. This is a very complicated operation and would take hours of my time to prepare. It's too expensive.”
– Photographer JS (NC) in response to internal poll by Advertising Photographers of America

“The burden of this nightmarish bureaucracy would be overwhelming in expense and complexity for artists. I can speak from personal experience that anyone who has been painting or drawing for any length of time is likely to have thousands of works of art that he would have to pay to digitize and file with one of these companies. And, the Copyright Office has made it clear that failure to register a work with these private companies would automatically render it an orphan, available to be copied by infringers with impunity.”
– Frank Stella, Artist

“If I had to scan all the images I have made in the past 40 years... in order to post them to a registry, the burden of such an expense would cripple me...[F]or the past 40 years I have been building a library of my creative work believing that this was my retirement and my estate. If I have no protection of this work than my estate will have been essentially bankrupted.”
–Barbara Bordnick Photography

“[T]he business model that would be created from this legislation...would doom such a large portion of the creative community that the end result would drastically reduce the artistic diversity our country has prided itself on and the rest of the world has been envious of.”
– Photographer RB (NC)

“[S]ince the expense of registering works will be born by the creative community the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized. “
– Orphan Works Statement By David Rhodes President, School of Visual Arts

“Even if we digitize our artwork, paid to have it uploaded on private databases, thousands and thousands of artists would not, could not or wouldn’t know that they would have to do this extra work to protect their copyrights.”
– Lynn Reznick Parisi, Business Manager Atlantic Feature Syndicate/off the mark cartoons

“The Copyright Office ignores the realities of the market place and places the rights of copyright owners at great risk.” -“Are all Copyright Owners to Become Orphans?”
–Cheryl Hodgson, Esq., President, California Copyright Conference

“Why would conflict photographers who risk their lives on a daily basis to cover important news stories so the world can remain informed, be willing to do so if they thought their work could and would be easily appropriated by others?
–Debra Weiss, Creative Consultant

“When a manufacturer wants to feature an artist’s work on one or more of their products, it is important to them that they are the only company who has the right to reproduce that design on that particular product. If other manufacturers are able to put the same design on the same product then it hurts the licensee.”
–Joanne Fink, President, Lakeside Design

“By opening the floodgates to unauthorized use of protected works, the legislation will result in a tidal wave of litigation as the result of rampant and widespread violation of the rights of publicity and rights of privacy of persons pictured in the orphan works...This wave of litigation between models, photographers and the users of orphan works over publicity and privacy rights will be a particularly disastrous consequence of the proposed amendment.”
–Constance Evans, National Executive Director, Advertising Photographers of America

“As an inspirational painter of children, my work is licensed to manufacturers and businesses. The Orphan Works Act of 2008 will create tremendous overhead for my business and an ethics challenge for controlling my message. The message is as important as the artwork; it is my ministry and my career.”
– Kathy Andrews Fincher, Kathryn Andrews Fincher, LLC

“Biomedical and scientific illustrators are not opposed to usage of orphaned works by the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education. However this legislation makes no limitations for these purposes and will dangerously expose copyrighted visual content to infringements while stripping the intellectual property holders of any practical means to protect their work.”
–Biomedical and Scientific Illustrators' Opposition to the Orphan Works Act of 2008

“The infringer is free to use any work in any manner—there are no restrictions on how a particular work may be used. One of our members recordings could end up in a motion picture—of any rating—a political advertisement or other commercial, or in a mashup that will alter the sound quality and characteristics of the original recording beyond recognition.”
– American Association of Independent Music (“A2IM”)
“Position Paper on the Current Proposed Orphan Works Legislation in the United States

“The Advertising Photographers of America (APA), the National Press Photographers Association (NPPA), the Stock Artists Alliance (SAA) and Editorial Photographers (EP) have all stated they cannot support the Orphan Works bills in their current form. Together, these groups represent more professional media photographers than other U.S. organizations.”
–From “Leading Photographer Associations Urge Congress to Amend Orphan Works Legislation”

“The inherent danger in remixing a medical animation or illustration is that ignorant people can change the meaning, intention or scientific accuracy of an image. They can damage the reputation of the studio from where the work originated.”
–Dena L. Matthews Biomedical Illustrator

“I was the plaintiff in a recent copyright infringement case and I can testify that the full remedies of the current law were necessary for me to prevail...The case took me four years and nearly $100,000 in legal fees, but I was able to prove that the infringement was a willful act, conducted in bad faith by a major corporation.”
– How Camel Cigarettes Orphaned My Work” by Michiko Stehrenberger

“Not only was my art desecrated and devalued in the ‘Orphaning’ process but my original specialized art was made to compete with me to my own client while others in the chain of infringements monetarily gained from its value and I received none.”
–“Orphan Works, Unmasked” by Andrea Mistretta

“Big publishing companies can ensure that their works are never orphaned...Even the Copyright Clearance Center insists that it is not possible to track the use of illustrations which appear in published work. Thus, they refuse to pay compensation to artists, even though those artists often retain all rights, including reprographic rights - to their work. If the CCC is correct that it’s impossible to track ownership of illustrations, then virtually all published artwork may be designated as orphaned.”
– James Perkins, Medical Illustrator

“NARIP takes issue with this legislation because there is no responsibility to the creative community, it's all about users. We've seen a remarkable shift from incentivizing creators and enabling them to protect their personal property, to ‘let’s provide a means and find a way to protect infringers so we can make sure they're not prosecuted.’ ”
–By Tess Taylor, National Association of Record Industry Professionals

“The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years. 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.”
–Attorney Steve Winogradsky, Past President, Association of Independent Music Publishers and California Copyright Conference

“In 2004, the Copyright Office initiated a theory, with the enthusiastic support of the anti-copyright lobby, that the public was being harmed because it didn’t have enough current contact information for authors and owners. The Copyright Office then requested Orphan Works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation on how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.”
–Association of Independent Music Publishers (AIMP) and California Copyright Conference (CCC) Joint Position Paper on Orphan Works Legislation

“The steps taken by illustrators over the past few years to address similar changes in their marketplace demonstrate that the incentives of the marketplace should be allowed to work without government intervention such as the Orphan Works Act, a bill that will permanently weaken the rights to the work these stakeholders create.”
–Terrence Brown, Executive Director, American Society of Illustrators Partnership

“As an artists advocate for over 20 years...I am deeply concerned that the drafters of the legislation clearly did not do the needed research and outreach to the artists advocates,, the artists community, the small business community, and the ‘minority’ communities before crafting the language of this legislation.”
–Kathleen Bitetti, Artist and Executive Director, Artists Foundation

“[W]hile the Copyright Office proposal immediately and unfairly prejudices the little guys in the creative economy, it sets a long term precedent that eventually could come back to haunt even those with deep pockets to defend themselves like Hollywood and Silicon Valley.”
– “Orphan Works Legislation – a Bad Deal for Artists,” by Bruce Lehman, Esq., Former Commissioner US Patent & Trademark Office

“Illustration work allows me to provide for my family; teaching allows me to give back to the community. My belief in stewardship brings me to the Orphaned Work Bills. This legislation strikes at the core of what we are as illustrators, how we do our business and why we chose to be illustrators.”
– CF Payne, Artist

The SBA Roundtable is the only forum so far conducted by the government to consider the economic impact of the Orphan Works Act on creators. The Roundtable was chaired by Tom Sullivan, Director of the Office of Advocacy of the SBA. It was initiated by the Illustrators’ Partnership, The Artists Rights Society and the Advertising Photographers of America. It was conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. Seventeen panelists participated. Scores of others submitted written papers.

The full written statements are now available as five PDFs.

Part 1: Illustrators, Fine Artists, Art Licensors, Art Educators, Copyright Attorneys
http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

Part 2: Cartoonists
http://www.scribd.com/doc/6210791?secret_password=1afd1r7sc8zltika8ct

Part 3: Photographers
http://www.scribd.com/doc/6210796?secret_password=ai90pgbz4xte6c3d80a

Part 4: Musicians & Writers
http://www.scribd.com/doc/6210808?secret_password=24doq9ainoadl3dqhnkn

Part 5: Amendments to H.R. 5889 & S. 2913
Articles in the Press
Submission to 2005 Copyright Office Study
http://www.scribd.com/doc/6210817?secret_password=2cdverotovlf9h15e2y1

To review the agenda, the panelists and their biographies, go to the IPA blog:
http://ipaorphanworks.blogspot.com/2008/08/80808-sba-hearing-on-orphan-works.html

The webcast is available here:
http://videos.cmitnyc.com/asip.html

THE HOUSE ORPHAN WORKS BILL (H.R. 5889) IS MOVING IN THE HOUSE NOW

Phone, fax, email these congressman immediately:

Delahunt phone (202) 225 3111 fax (202) 225-5658
phone: (617) 770-3700 fax: (617) 770-2984

Conyers phone: (202) 225-5126 fax: (202) 225-0072
phone: (313) 961-5670 fax: (313) 226-2085

Nadler phone: (202) 225-5635 fax: (202) 225-6923
phone: (212) 367-7350 fax: (212) 367-7356

Berman phone: (202) 225-4695 fax: (202) 225-3196
phone: (818) 994-7200 fax: (818) 994-1050

Express your outrage at the way this is being done

We've been getting assurances all day that the bill was "dead for this year."

Tell them not to pass this anti-copyright law

• under cover of night
• under cover of economic crisis
• under cover of another televised debate

Tell them this is an outrageous way to re-write the copyright laws of the United States

The Orphan Works Bill: Not Dead Till It’s Dead

Wired Magazine has posted an article: “'Orphan Works' Copyright Law Dies Quiet Death”
http://blog.wired.com/27bstroke6/2008/09/orphan-works-co.html Well, we can hope. But we’re dealing with a.) a fluid situation in Washington; and b.) special interests determined to pass this bill. So our assessment:

It’s not dead till it’s dead.

According to our DC sources, the most efficient way for Congress to pass this bill now would be for the House to scrap their own version and adopt the Senate’s. There are procedural ways they can do this. Some say they will; some say they won’t. It’s enough to know they can.

There are special interest groups promoting the House bill now: big stock houses, for example, like Getty and Corbis, and groups working with them. They want an infringer-friendly “dark archive,” a privately-owned “entity” sanctioned by the Copyright Office where infringers would file a notice of intent to infringe a work.

Since artists would not have access to this dark archive, the “sanctioned entity” would be of no use to us until our work has been infringed and we’ve file a case in federal court. And then it would mostly serve the interests of infringers – letting them prove in court they had done the minimal necessary paperwork before they infringed.

The important thing to remember about the House bill is that there is no protection for artists in it. It would simply give more middlemen a chance to profit from this gutting of copyright law.

We know it’s hard to ask Congress to focus on copyright law with a financial crisis looming. But we didn’t pick this fight and it’s our rights at stake if we don’t.

There is no national emergency for orphan works that requires Congress to pass this bill - which was drafted in secret - in the dark of night.

Please contact your House representative today. Tell them not to pass the House bill. Tell them not to adopt the Senate’s.

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

TAKE ACTION: EMAIL CONGRESS NOW
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

Orphan Works: Connect the Dots

1. Web firms quietly win copyright victory in Congress

SAN FRANCISCO (MarketWatch) Sept 29 -- As the media turned its attention last weekend to battles on Capitol Hill over the fate of the proposed Wall Street bailout bill, Internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory that could facilitate their use of copyrighted material.

The Senate on Friday passed the Orphan Works Act of 2008, legislation that weakens copyright protection for works whose owners cannot be located. The legislation has now been referred to the House Judiciary Committee.

The legislation requires only that a company make a "reasonably diligent" search to locate a copyright owner before using their work in media including the Internet, and limits compensation required for the use of an infringed work.

-By John Letzing, MarketWatch Sept. 29, 2008
http://www.marketwatch.com/news/story/web-firms-quietly-win-copyright/story.aspx?guid={E21206C0-98F5-459B-9506-8133CBD82859}&dist=hpts


2. Google Acknowledges Copyright Infringement Claims Could Harm Business

ILLUSTRATORS PARTNERSHIP Sept 30 -- In March 2007, Google filed a mandatory 10-Q Filing with the Securities and Exchange Commission. In it, they acknowledged: "copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights."

Google admitted that "[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business." (Italics added.)

--Brad Holland and Cynthia Turner, Illustrators Partnership
http://investor.google.com/documents/20070331_10-Q.html


3. Google Sees Value in Orphan Works

ILLUSTRATORS PARTNERSHIP March 8, 2006 -- At the Copyright Office's Orphan Works Roundtables, July 26-27, 2005, Alexander MacGilivray of Google stated:

"The thing that I would encourage the Copyright Office to consider is not just the very, very small scale -the one user who wants to make use of the [orphan] work - but also the very, very large scale - and talking in the millions of works. - page 21

"Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable." - page 119

"We expect that our use of these orphan works will likely be in the 1 million works range..." (Italics added.) - page 166

"[W]e know that many of them [orphan works] will be in the public domain, that most of their authors won't care. But there are a few [authors] that really will care and they will come forward [to claim authorship] and it will be extremely inefficient for us." (Italics added.) -page 166
(Page numbers are from Copyright Office transcripts.)

Orphan Works Roundtables were held by the US Copyright Office July 26-7, 2005 in Washington DC
http://www.copyright.gov/orphan/transcript/0726LOC.PDF


4. Google Donates $3 Million to U.S. Library of Congress

Australian IT Nov 23, 2005 -- The U.S. Library of Congress is kicking off a campaign to work with other nation's libraries to build a World Digital Library, starting with a $US3 million donation from Google.

-Eric Auchard in San Francisco | November 23, 2005
http://australianit.news.com.au/articles/0,7204,17339145%5E15409%5E%5Enbv%5E15306-15322,00.html

Orphan Works: Legislation by Misdirection

The architects of the Orphan Works Act have already placed testaments to the bill on their websites:

Senator Leahy: http://leahy.senate.gov/issues/OrphanWorks.html
Senator Hatch: http://tinyurl.com/3jsq5o

They say this "landmark intellectual property bill" will "unlock proverbial attics of copyrighted works" whose owners can't be found. Is that really what all the fuss has been about?

No. If that were the case, the problems could be solved with a modest expansion of Fair Use. It's not proverbial closets we fear seeing unlocked. It's our commercial inventories, which would be exposed to potential infringement.

And while one Senator pointedly writes that the bill "does not dramatically restructure copyright law" (emphasis added), he's right: it doesn't "restructure" it. It merely redefines an orphaned work so broadly that it would let users infringe millions of works as orphans on the premise that some might be.

And why, if the bill is only meant to benefit libraries and museums, have the doors been opened wide for commercial usage?

A Fundamental Change to Copyright Law

For us, the saddest of these postings is on the Copyright Office website itself. http://www.copyright.gov/orphan/ There, Marybeth Peters, the Register of Copyrights explains that this bill is necessary because the U.S., in trying to harmonize our law with international agreements, has created too many orphans.

But that's not the sad part. There are orphans. She's entitled to her belief. And as Register of Copyrights, she's entitled to lobby for a change in the law. But what's sad is that the Register, who we've respected for years as an advocate for creators rights, has chosen to justify this legislative scheme by mischaracterizing the honest objections that creators have raised in good faith, again and again.

Here's how she summarizes the objections of the hundreds of thousands of artists, writers, photographers and musicians who oppose this bill:

"Some critics [she writes] believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree."

Well, those are all real issues, but they've never been our focus. We've made our case clearly, simply and often.

Our objection goes to the heart of the matter. Here it is, as one of us expressed it in his opening statement at the Small Business Administration Roundtable, August 8:

"The bill's sponsors say it's merely a small adjustment to copyright law. In fact, its logic
reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder."
- From "Orphan Works: A Hobson's Choice for Artists," by Brad Holland August 8 2008

And in case the point needed elaboration:

"This exclusive right matters to artists for three reasons:
· Creative control: No one can change your work without your permission;
· Ownership: No one can use your work without your permission;
· Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.
- http://ipaorphanworks.blogspot.com/2008/08/orphan-works-hobsons-choice-for-artists.html

The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
http://www.law.cornell.edu/treaties/berne/9.html

There can be no responsible argument that the Orphan Works Act is consistent with Article 9 of Berne. None.

Simple reason: the Orphan Works Act does not limit exemptions to an author's exclusive right to "certain special cases." Case closed.

There are many other reasons to object to this terrible bill: it violates the entirety of Article 9. But we only need to make this single point to show that it's a radically new copyright law.

Hiding the Rabbit

The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about "reasonably diligent searches," injunctive relief and statutory damages.

Meanwhile the secret of the trick has been simple: redefine an orphaned work as "a work by an unlocatable author."

This new definition would permit any person to infringe any work by any artist at any time for any reason - no matter how commercial - so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his own property. It defines 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.

This is a new definition of copyright law.

The headline on the Copyright Office website should read:

In the United States, Copyright Will No Longer Be the Exclusive Right of the Copyright Holder.

This headline would at least have the virtue of candor.

On March 13, the Register of Copyrights testified before the House IP Subcommittee. On page 1 of her testimony she said:

"Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries."
http://www.copyright.gov/docs/regstat031308.html

You can bet it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Write your congressional representatives today and tell them not to follow.

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

TAKE ACTION: EMAIL CONGRESS NOW
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

Orphan Works: The Devil's Own Day

Never Too Busy to Pass Special Interest Legislation

As lawmakers struggled Friday to clean up the mess on Wall Street, sponsors of the Orphan Works Act passed more special interest legislation. Their bill would force copyright holders to subsidize giant copyright databases run by giant internet firms.

Like the companies now needing billion dollar bailouts, these copyright registries – which would theoretically contain the entire copyright wealth of the US – would presumably be "too big to fail." Yet it's our wealth, not theirs, the scheme would risk.

Small business owners didn't ask for this legislation. We don't want it and we don't need it. Our opposition numbers have been growing daily. So Friday, the bill's sponsors reached for the hotline.

What is Hotlining?

Critics of hotlining say "that lawmakers are essentially signing off on legislation neither they nor their staff have ever read."

"In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed."
- Roll Call, Sept 17, 2007

In other words, a Senate bill can pass by "unanimous consent" even if some Senators don't know about it.

The Devil's Own Day

Senators Leahy and Hatch hotlined the Orphan Works Act twice last summer. Each time came at the end of a day, at the end of a week, near the end of a legislative session. Each time lawmakers were distracted by other issues and other plans. Each time artists rallied quickly and each time a Senator put a hold on the bill.

Friday the Senators found a new opportunity.

With lawmakers struggling to package a 700 billion dollar bailout to avert a worldwide economic meltdown, with the rest of the country focused on Presidential debates, with Washington in chaos and Congressional phone lines jammed, they hotlined an amended bill. On short notice, even the legislative aides we could reach by phone said they didn't have time to read it. And so, while we were rushing to get out a second email blast to artists, the bill passed by "unanimous consent" - in other words, by default.

What better way to pass a bill that was drafted in secret than to pass it while nobody's looking?

Since Friday, artists have been conducting bitter post mortems on their blogs. That's understandable, but it's not time yet.

"When Sherman arrived at Grant's headquarters later that evening, he found the general - broken sword and all - chewing on a soggy cigar in the rain, which had begun soaking the battlefield.

'Well, Grant,' Sherman said to his friend, 'we've had the devil's own day, haven't we?'

'Yes,' replied Grant, 'lick 'em tomorrow, though.'"

The Senate passed their bill Friday, but the House hasn't. There's still time to write, phone and fax your congressional representatives. Tell them not to let the House Judiciary Committee fold their bill and adopt the Senate's.

Tell Congress to protect the private property of small businesses. Lick 'em tomorrow.

– Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership
Quote from "The Devil's Own Day," by Christopher Allen, January 2000 America's Civil War Magazine

TAKE ACTION: EMAIL CONGRESS TONIGHT
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

Orphan Works: A Hobson’s Choice for Artists

Opening statement by Brad Holland, delivered at the Small Business Administration Roundtable: “How Will the Orphan Works Bills Economically Impact Small Entities?”
Conducted August 8, 2008 at the Salmagundi Club, New York City.

Visual artists oppose the Orphan Works Act because it would impose a radically new business model on the licensing of copyrighted work. It would force artists either to entrust their entire life’s work to privately owned commercial databases or see it exposed to widespread infringement.

This Hobson’s Choice would harm artists and collateral small businesses. It would let giant image banks access our commercial inventory and metadata – and enter our commercial markets as clearinghouses to compete with us for our own clients.

I can think of no other field where small business owners can be pressured to supply potential competitors with their content, business data and client contact information. Databases don’t create art. Individuals do. Yet this bill’s provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of art itself.

The bill’s sponsors say it’s merely a small adjustment to copyright law. In fact, its logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.

This exclusive right matters to artists for three reasons:

• Creative control: No one can change your work without your permission;
• Ownership: No one can use your work without your permission;
• Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.

The Orphan Works Act would void that exclusive right:

• It would permit anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work.
• And since you can be infringed without your knowledge anytime, anywhere in the world,
• You could never again guarantee a client that your work has not been – or won’t be – infringed.
• Therefore you could never again guarantee a client the exclusive right to license your work.
• That means that from the moment this bill takes effect, every artist’s commercial inventory would be devalued by 2/3.

The databases this bill would create will be for-profit enterprises. That means to make money, they’ll have to do a lively business identifying orphans for infringers. That means making the databases infringer-friendly. It means promoting infringement. As clients come to rely on these registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans.

The cost of digitizing and registering thousands – or tens of thousands – of individual images will make compliance impossible for most artists. This will cause countless copyrighted works to fall through the cracks and into the public domain. This mass orphaning will be a gold mine for opportunists:

• Some will provide access to orphans as royalty-free work and take their profits in advertising revenue.
• Others will harvest orphans and market them as clip art.
• Others will harvest orphans, alter them slightly to make “derivative works” and register the derivatives as their own copyrighted product.

This will unjustly alter the nature of competition in commercial markets. How many artists - who must create the work they sell - will be able to compete with large internet databases that can provide clients with free or cheap access to the work of others?

This legislation is based on recommendations by the Copyright Office. Yet the Copyright Office studied the specific subject of orphaned work, that is – older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets – a subject the Copyright Office never studied.

This bill’s sponsors have finally acknowledged that it’s not actually an orphan works bill. Instead they’ve re-defined an orphaned work as any work whose author is simply hard to find. Yet this is an irresponsibly broad definition. A professional artist may be accessible to hundreds of clients, but still be inaccessible to millions of other people. Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the theft of private property.

The majority of visual artists are self-employed. We work alone without marketing, administrative and financial support. We receive no salaries, do our own marketing and have no administrative support. We have no safety net. Yet we supply much of the visual material that makes up our popular culture. We have every incentive to see that our work is accessible. But it’s our right to control its use and it’s our prerogative to protect it from exploitation.

We’re here today to speak as small business owners. Yet for most of us, art is something more than a business.

Artists become artists because we want to practice alchemy - to turn the lead of experience into something that doesn’t tarnish or rust. At the heart of creativity is independence. We’re here today to defend our independence.

We didn’t ask for this law to be drafted. It’s not pleasant to have to be here to oppose it. Most of us would rather be home painting, writing, composing, making music, taking pictures. But if opposing this bill is the cost of our independence, then it’s a price we have to pay, because independence is the price we owe to our craft.

– © 2008 Brad Holland

Brad Holland’s work has appeared in Time, Vanity Fair, The New Yorker, Playboy and the New York Times, among others. He is a member of the Society of Illustrators Hall of Fame, the Alliance Graphique Internationale and co-founder of the Illustrators’ Partnership of America. In 2006 he testified against the Orphan Works Act in both Houses of Congress.