Today the House and Senate sent us draft copies of the new Orphan Works Act of 2008. They haven’t officially released it yet, but we’ve been told the Senate will do so this week. A quick analysis confirms our worst fears and our early warnings. If these proposals are enacted into law, all the work you have ever done or will do could be orphaned and exposed to commercial infringement from the moment you create it.
A webcast interview with Brad Holland about this bill is now available at:
http://www.sellyourtvconceptnow.com/orphan.html
Please listen to it because this radical proposal, now pending before Congress, could cost you your past and future copyrights.
On Saturday April 5,2008, artist and producer Mark Simon interviewed Hall of Fame illustrator Brad Holland on the subject of Orphan Works legislation. The warnings in this interview have now been confirmed by the advance drafts of the bill. Learn what artists groups are doing and how you can help oppose this radical departure from traditional copyright law and business practice.
The Illustrators’ Partnership is currently working with our attorney - in concert with the other 12 groups in the American Society of Illustrators Partnership to have our voices – and yours - heard in Congress. We’ll keep you posted regarding how you can do your part.
Mark Simon has worked on over 2,500 productions in the last 20 years as a director, producer, story artist, animator and designer. His clients include Disney, Universal, Viacom, Sony, HBO, Nickelodeon, Steven Spielberg, Fox, USA Networks, ABC, AT&T, and many others.
Please forward this information to every creative person and group you know. Mr. Holland and Mr. Simon have given their permission for this audio file to be copied and transferred and replayed.
Tuesday, April 22, 2008
Wednesday, April 16, 2008
Orphan Works – No Myth
We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.
How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators’ Partnership testified against it in both the House and Senate.http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
A: To quote from the Copyright Clearance Center:
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview
Q: Why does this exclusive right matter?
A: Two big reasons:
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
“If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party.
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business, “Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthlyhttp://www.newyorkartworld.com/commentary/holland.html
“First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Lawhttp://weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators’ Partnership testified against it in both the House and Senate.
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we’re on the edge of our seats.’” -Intellectual Property -Progress Seen on Developing ‘Orphan Works’ Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”.Since that would give us only a month to notify artists, we decided to start now.http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman BermanQ: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector...”http://www.copyright.gov/orphan/orphan-report.pdf
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?This exchange suggests that if Copyright Office proposals become law:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
- Unregistered work will be considered a potential orphan from the moment you create it.Q: What does it mean to say your copyright is an “exclusive right”?
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.Q: So how would the Orphan Works proposals endanger that right?
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. ThereforeQ: But the “orphan works problem” isn’t just something dreamed up by evil corporations to steal your vacation photographs. It’s an actual problem faced by academics, librarians, and others.
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Reporthttp://www.copyright.gov/orphan/orphan-report.pdf
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.”Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; thereforeQ: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn’t have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.
“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.
“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Reporthttp://www.copyright.gov/orphan/orphan-report.pdf
-You would never have certainty because you’d never know if, when or where your work has been infringed.Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “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
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these 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 (emphasis added).” -Item 1/page 1 Orphan Works Reply CommentsIt may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).”http://www.copyright.gov/orphan/orphan-report.pdf
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
“If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party.
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business, “Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly
“First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
Wednesday, April 2, 2008
How Registries Will Orphan Your Work
When the Copyright Office spawned the Orphan Works bill (2006), they said it would not cause problems for artists. They were wrong. Now they concede the problems, but say registries are the solution. Wrong again.
PicScout is one of the technologies being developed for locating visual art. On March 13, they touted their capabilities to the House IP subcommittee:
“Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success... Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.”
http://judiciary.house.gov/media/pdfs/Gura080313.pdf
PicScout is just one of several firms that hope to benefit from the Orphan Works bill. They envision a future registry in which registered pictures will not be available for review or browsing. Instead a searcher would feed in a desired image and if there’s a match, get back only the artist’s name and contact information – or be told there is “no match.”
So far, so good – for all the pictures in the registry. But “no match” – there’s the rub.
You Can’t Find What’s Not in the Registry: Let’s say you haven’t registered a particular image in the system. In that case, the best technology in the world won’t find it there. So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually orphan a non-orphaned image.
But let’s say you comply with this coercive bill. You register tens of thousands of your works with one or more commercial registries. Are these works now safe from infringement? No! They can still be orphaned. Here’s how:
PicScout’s claim of “99% success” concedes a margin of error of at least 1%. Sounds small, doesn’t it? But consider:
– Google has already said they intend to use millions of orphaned works. Other businesses will use millions more.
– One percent of every million searches means 10,000 registered images “accidentally” orphaned.
– Multiply 10,000 accidental orphans by millions of millions of searches and you have an astronomical number.
– These are images that will be orphaned even though the artists spent the time and money to register them.
– Will these artists be able to sue for infringement?
– Yes, but at their own risk, because
– The users’ use of registries will prove they did a “reasonably diligent search.”
And there’s another problem:
– It’s statistically impossible for each million searches to orphan the same 10,000 images.
Therefore:
– Every image you register will be permanently vulnerable to an infinite number of orphan opportunities; also:
– An image may turn up as a “match” on one registry – while being orphaned on another.
There are many reasons why international law forbids coerced registration as a condition of protecting your copyrights. We’ve just given you some.
We believe the technology being developed by PicScout and others is fantastic. But it should be used to help artists protect their rights; not to facilitate cultural theft on an unprecedented scale.
Please help us spread the word about this bad bill.
PicScout is one of the technologies being developed for locating visual art. On March 13, they touted their capabilities to the House IP subcommittee:
“Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success... Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.”
http://judiciary.house.gov/media/pdfs/Gura080313.pdf
PicScout is just one of several firms that hope to benefit from the Orphan Works bill. They envision a future registry in which registered pictures will not be available for review or browsing. Instead a searcher would feed in a desired image and if there’s a match, get back only the artist’s name and contact information – or be told there is “no match.”
So far, so good – for all the pictures in the registry. But “no match” – there’s the rub.
You Can’t Find What’s Not in the Registry: Let’s say you haven’t registered a particular image in the system. In that case, the best technology in the world won’t find it there. So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually orphan a non-orphaned image.
But let’s say you comply with this coercive bill. You register tens of thousands of your works with one or more commercial registries. Are these works now safe from infringement? No! They can still be orphaned. Here’s how:
PicScout’s claim of “99% success” concedes a margin of error of at least 1%. Sounds small, doesn’t it? But consider:
– Google has already said they intend to use millions of orphaned works. Other businesses will use millions more.
– One percent of every million searches means 10,000 registered images “accidentally” orphaned.
– Multiply 10,000 accidental orphans by millions of millions of searches and you have an astronomical number.
– These are images that will be orphaned even though the artists spent the time and money to register them.
– Will these artists be able to sue for infringement?
– Yes, but at their own risk, because
– The users’ use of registries will prove they did a “reasonably diligent search.”
And there’s another problem:
– It’s statistically impossible for each million searches to orphan the same 10,000 images.
Therefore:
– Every image you register will be permanently vulnerable to an infinite number of orphan opportunities; also:
– An image may turn up as a “match” on one registry – while being orphaned on another.
There are many reasons why international law forbids coerced registration as a condition of protecting your copyrights. We’ve just given you some.
We believe the technology being developed by PicScout and others is fantastic. But it should be used to help artists protect their rights; not to facilitate cultural theft on an unprecedented scale.
Please help us spread the word about this bad bill.
Thursday, March 27, 2008
The Orphan Works Landscape
The New “Improved” Orphan Works bill is due out next week. We expect it to be much the same as the last one. Unfortunately, the Orphan Works landscape has changed.
Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.
Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?
If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do. Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.
We believe the way to speak with one voice is not to submit to a bill that would:
- Create uncertainty in commercial markets;
- Nullify the exclusive right of copyright and therefore
- Reduce the value of your work;
- Threaten the privacy protection afforded by current copyright law; and
- Invite retaliation from abroad.
Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.
Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.
Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.
Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.
Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?
If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do. Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.
We believe the way to speak with one voice is not to submit to a bill that would:
- Create uncertainty in commercial markets;
- Nullify the exclusive right of copyright and therefore
- Reduce the value of your work;
- Threaten the privacy protection afforded by current copyright law; and
- Invite retaliation from abroad.
Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.
Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.
Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.
Thursday, March 20, 2008
Written Statement of
Brad Holland and Cynthia Turner
Brad Holland and Cynthia Turner
On Behalf of the Illustrators’ Partnership of America
Concerning Orphan Works Legislation
The Subcommittee on Courts, the Internet and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives
Concerning Orphan Works Legislation
The Subcommittee on Courts, the Internet and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives
March 20, 2008
Mr. Chairman and Members of the Subcommittee, while this statement is being filed by the co-chairs of the Illustrators Partnership of America, it reflects a statement previously submitted to the Copyright Office and endorsed by 42 national and international organizations representing a broad spectrum of the commercial and fine artists who make their living from the exercise of the exclusive rights guaranteed to them by the U.S. and international copyright law and treaties.
We respectfully request that the subcommittee delay any action on the pending legislation until we have been able to inform its members fully about our concerns and to work with the subcommittee to address those concerns. It then may be possible to craft legislation that does not unfairly prejudice the interests of those whose livelihood depends on meaningful copyright protection. We also are concerned that the legislation, as drafted, may have spillover effects on a wide variety of copyrighted works that are important to a growing and healthy U.S. economy in the information age.
Under this legislation, as we understand it, effective copyright control to a work, including works of visual art, would require submission of a copy or copies of the work to as yet-to-be created private registration companies that would use untested technologies to scan images submitted by unlicensed users. These users would then be excused from any liability for infringement unless the legitimate rights holder responded within a certain period of time to grant or deny permission to use the copyrighted work. This is a radical departure from any existing business models or practices in the field of copyright.
Further, it radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession.
U.S. copyright law currently contains a number of statutory licenses that legitimize either de minimus use of a work created principally for other uses, or that deal with the special needs of not-for-profit organizations and others that skirt the boundaries of fair use. However, all of these statutory licenses provide for a system of remuneration to the copyright owner for uses that have not been directly authorized. This legislation is neither limited to de minimus uses of works nor does it provide a method of compensation for such uses.
The cavalier disrespect for the fundamental principle of exclusive authors’ rights that is inherent in the Copyright Office’s legislative scheme is reflected in the following colloquy between this author and the General Counsel of the Copyright Office at a meeting in which he responded to the concerns of visual artists about the potential harmful effects of this legislation.
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright
Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
(From the author’s notes of the meeting.)
The enjoyment and the exercise of these rights shall not be subject to any formality.This Berne Convention 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:
(Emphasis added).
Member [countries] shall confine limitations and exceptions to exclusive rights to:Legal scholars Jane Ginsburg and Paul Goldstein have warned that Orphan Works legislation must precisely define the scope of its mandate or fail to meet the three-step-test. As they wrote in their submission to the Orphan Works Study:
(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 rights holder.
[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of "orphan" works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these 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-GoldsteinWe do not believe the Copyright Office proposals address the concerns of professors Goldstein and Ginsburg and would, if enacted, subject the United States to complaints of treaty non-compliance at the World Trade Organization. And, we would expect the international reprographic and artists rights societies which endorsed our submissions to the U.S. Copyright Office would be able successfully to encourage their governments to bring such complaints.
(Emphasis added).
As the world’s leading creator and exporter of copyrighted works, the credibility of efforts of the United States to secure effective international enforcement of copyright would be materially weakened by the enactment of this proposed legislation. Certainly any law that prevents effective remedies or imposes arbitrary burdens on the right to bring infringement actions – much less provide for compensation for de minimus uses – would be seized upon by those in other countries who wish to defend piracy of U.S. works.
In addition to our concerns about the compulsory licensing aspects of this legislation we would like to acquaint the subcommittee with the unique characteristics of illustration and other visual works of art that distinguish us from those who create other categories of copyrighted works such as literary works, songs and films. Unlike these other categories of works, works of visual art lack universally accepted titles that would allow users to search for them by name. Therefore the role of image recognition technology is critical. This technology is still in its infancy, is untested, and its use raises a number of very practical concerns. Among these concerns:
– The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works;Further, we have a number of unanswered questions about how the registries that are key to this legislative scheme would work, such as:
– The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore
– Every artist would see thousands of his creations potentially orphaned from the moment of creation.
– No registry would be meaningful until billions of pre-existing works (both published and unpublished) from artists (both living and dead) have been digitized; but
– Few, if any, living artists could afford the time and expense of digitizing and registering a backlog of tens of thousands of their own works; therefore
– Countless working artists would find countless existing works orphaned from the moment they create them.
– Who is to be trusted with this [these] valuable database(s)?Finally, we are concerned that, even if artists do comply with these coercive measures, they might still find their work orphaned. Let’s say an artist registers tens of thousands of images with one or more commercial registries. A user searches for one of his images and makes a match. The user contacts the artist and asks to use the art for a silly or distasteful ad. Or he asks to use the art for free. Most artists already see such inquiries and we know there aren't enough hours in the day to deal with them. Yet under this law, we would be obligated to respond to every irresponsible request! All this uncertainty would drive ordinary business transactions into the courts where uncertainties would multiply: judges unfamiliar with commercial markets would routinely have to render decisions regarding countless disputes in fields in which they lacked expertise.
– Why should any professional creator be forced to entrust his or her entire creative inventory to the control of other commercial entities?
– What happens when a registry is hacked?
– What happens when it’s acquired?
– The contents of these image registries will be more valuable than secure banking information. What happens when the terms of service are changed?
– What happens when registration fees become prohibitive?
– What if individual artists cannot afford to maintain their immense bodies of work in competing registries?
The imposition of coerced registration in the U.S. could force foreign rightsholders to pay to register their work with U.S. registries, inviting foreign governments and business to retaliate in unpredictable ways.
And, many of the images to be affected by these proposals will be works created since 1976, when the current copyright act was passed. That law promised artists that their art would be protected even if it was not marked and registered. Yet if the Copyright Office proposals become law, any unmarked picture created in compliance with the 1976 law will become an instant orphan. Countless rightsholders will be penalized for not having done over the last 30 years what the law never required them to do.
We appreciate the opportunity to submit these comments and look forward to working with the subcommittee to address our concerns.
– Brad Holland and Cynthia Turner, for The Illustrators’ Partnership of America
Wednesday, March 19, 2008
Orphan Works Update
Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill.
But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess.
The decision to introduce such a radical bill so late in the session is ominous. Because of fall elections, this will be a short Congressional year. Any bill not passed by the end of Congress will have to re-introduced in the next Congress. That means the bill’s sponsors must know they have their ducks lined up.
Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by.
But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess.
The decision to introduce such a radical bill so late in the session is ominous. Because of fall elections, this will be a short Congressional year. Any bill not passed by the end of Congress will have to re-introduced in the next Congress. That means the bill’s sponsors must know they have their ducks lined up.
Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by.
Friday, March 14, 2008
“Promoting” Orphan Works
Yesterday the House subcommittee on Intellectual Property held their first hearing on new Orphan Works legislation. Note the title:
“Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users”
http://judiciary.house.gov/oversight.aspx?ID=427
Balance, however doesn’t seem to be part of the Orphan Works juggernaut. Indeed, after this hearing, we can no longer assume that the U.S. Copyright Office is an advocate for the protection of creators' rights. As they wrote on page 14 of their original Orphan Works Report:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation.” (our emphasis)
But how can any copyright law be “comprehensive” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the business lives of creators?
Private Sector Registries
Since the last bill died in committee in 2006, the advocates of this legislation have promoted the creation of private commercial registries. On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.
This means you would not only have to register your published work, but also:
— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
— Every letter, email, etc., professional, personal or private.
This Would End Passive Copyright Protection: Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.
But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.
The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:
— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.
Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements - which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.
Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.
We urge Congress to carefully reconsider the unintended consequences of this radical copyright proposal.
— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
“Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users”
Balance, however doesn’t seem to be part of the Orphan Works juggernaut. Indeed, after this hearing, we can no longer assume that the U.S. Copyright Office is an advocate for the protection of creators' rights. As they wrote on page 14 of their original Orphan Works Report:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation.” (our emphasis)
But how can any copyright law be “comprehensive” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the business lives of creators?
Private Sector Registries
Since the last bill died in committee in 2006, the advocates of this legislation have promoted the creation of private commercial registries. On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.
This means you would not only have to register your published work, but also:
— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
— Every letter, email, etc., professional, personal or private.
This Would End Passive Copyright Protection: Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.
But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.
The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:
— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.
Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements - which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.
Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.
We urge Congress to carefully reconsider the unintended consequences of this radical copyright proposal.
— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
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