The Orphan Works Act: Warning to the Public

Should the general public care about the Orphan Works Act?
Yes, because the effects of this bill will expose any citizen's visual images to infringement, including infringement for commercial purposes or distasteful uses.

Most people don't understand current copyright law. But under current law, they don't have to - the law itself protects them from not understanding it. Anything you create is considered your private property.

But under this amendment, all citizens would be required to understand that they must now take active steps - not to actually protect their work (because registries won't protect it) – but merely to preserve their right to sue an infringer in federal court (in case they ever find out they've been infringed in the first place).

Otherwise, ignorance of copyright law will be no excuse against an infringer who has done a "reasonably diligent search" for a photo he found on a blog, photo sharing site, Facebook page, or other source.

Proposal for Copyright Warning and Public Awareness Campaign
If this bill is passed, copyright will no longer be considered the exclusive right of the creator. Therefore, Congress should direct the Copyright Office to commence an awareness campaign to be conducted in all media, explaining to all copyright holders the new terms of copyright protection. Public warnings should state at least the following:

“Due to a change in US copyright law, citizens should now be aware that any creative expression they put into tangible form – from professional artwork to family photos - will be subject to infringement, including infringement for commercial uses, by anyone in the United States who is unable to locate them by what the infringer determines – and a court agrees - to be a reasonably diligent search.

“To preserve your right to sue infringers in federal court, you are advised to take active steps to assert authorship of every work you create.

“These steps will include inserting meta-data in each work, marking each work with a copyright symbol and contact information and registering each work in commercial databases where infringers can search for your work.

“Ignorance of copyright law will be no excuse against an infringer who has done a “reasonably diligent search” according to guidelines established by Congress.”

This should be the minimum warning information and it should be issued to the public on an on-going basis to alert successive generations of the legal obligations they will have to observe as the price of creating art of any kind. We also ask Congress to direct the Copyright Office to establish and maintain local law clinics where creators and other citizens can seek clarification about their obligations under Orphan Works law.

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

Orphan Works Update: The House Bill and Commercial Registries

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

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

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

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

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

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

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

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

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

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

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

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

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

Some Backers of the Controversial Orphan Works Bill Say They’re Launching a Campaign to “Rescue Orphan Works”

Some backers of the controversial Orphan Works bill say they’re launching a campaign to “Rescue Orphan Works.”

From whom?

We’re not the ones interested in infringing other people’s copyrights.
We’re only interested in protecting our own.
If the “Rescue Orphan Works” folks really want to use only true orphaned work, they’d join us in asking that this bill be drafted accordingly.

From our written statement submitted to the Senate April 30, 2008 http://www.illustratorspartnership.org/ow_docs

We believe the orphan works problem can be and should be solved with carefully crafted, specific limited exemptions.

• An exemption could be tailored to solve family photo restoration and reproduction issues.

• Usage for genealogy research is probably already covered by fair use, but could rate an exemption if deemed necessary.

• Limited exemptions could be designed for documentary filmmakers.

• Libraries and archives already have generous exemptions for their missions. However, if they believe they need expanded access to work whose authors are hard to find, we’d suggest that Congress adopt a variant of the Orphan Works clearance system in use in Canada.

Canada has created a statutory licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners.

The license is issued by the Canadian Copyright Board. Decisions are made on a case-by- case basis through application to the Board. If the Board is satisfied by the applicant’s efforts of e-mails, phone calls, written correspondence, approaches to copyright collectives, Internet searches, etc., then it may issue a non-exclusive license which is valid only in Canada, subject to any terms and conditions it sees fit. http://www.library.yale.edu/~llicense/ListArchives/0507/msg00096.html

A system such as this would serve potential users of orphaned work by allowing them to clear rights in an orderly, verified way. Therefore we respectfully ask that the Senate conduct further hearings to resolve the specific problem of providing public access to true orphaned works. Our objections to S.2913 – which incorporates the proposals made by the Copyright Office – is that its effects cannot be limited to old or abandoned copyrights.

There’s no need to “rescue orphan works” from artists.
And you don’t save orphans by making new ones!

Help solve the real orphan works problem:
Don't Let Congress Orphan Your Work

2 minutes is all it takes to write Congress and protect your copyright:
http://capwiz.com/illustratorspartnership/home/

Backers of Orphan Works Bill Circulating their Talking Points

“Neither the House nor the Senate drafts of the bill contain the word “registries,” [they write] but rather they require users to search non-governmental databases of copyrighted works. The purpose of any database is not meant to take the place of copyright registration, but to have a way to search for visual images. Any participation in such a database would be voluntary.”

But this doesn’t mean what it appears to say. Take it point by point:

Talking Point #1: “Neither the House nor the Senate drafts of the bill contain the word ‘registries.’ ”
Response: Correct. They contain the word “databases,” a synonym:

Registry: register: an official written record of names or events or transactions
http://wordnet.princeton.edu/perl/webwn

Database: A database is a structured collection of records or data
http://en.wikipedia.org/wiki/Database

Q: Why a synonym?
A: Because international copyright law forbids member countries to impose registries as a condition of protecting copyrights: Berne/Article 5(2) ”The enjoyment and the exercise of these rights shall not be subject to any formality.” http://www.law.cornell.edu/treaties/berne/5.html

In other words, if they used the word “registries” in the bills, it would be a red flag to other countries that the US is flirting with non-compliance with international treaties.


Talking Point #2: “...rather they [the bills] require users to search non-governmental databases of copyrighted works.”
Response: Non-governmental databases” means databases maintained in the private sector.
For users to find your work in these commercial databases, your work would first have to be in the database.
Work not in the database would be orphaned.


Talking Point #3: “Any participation in such a database would be voluntary.”
Response: Congress cannot pass a bill making registration mandatory because that would violate Berne/Article 5(2).
And that would state explicitly to other countries that the US no longer intends to honor its international agreements.
There are red flags all over these talking points.


Summing up: The Orphan Work bills would mandate the creation of registries by commercial interests. You would not be legally forced to place your work with these for-profit registries. But failure to do so would orphan your work.

The deceptive talking points accompanying this bill are another red flag.

Take Action/ Write Congress
http://capwiz.com/illustratorspartnership/home
Over 37,000 messages have been sent from the site in the last 48 hours. Please spread the word.

Orphan Works Update May 8, 2008

Since yesterday, over 31, 000 letters have gone out from our Orphan Works advocacy site.

Q: What can we do next?

1. Write the House Judiciary Committee. We’ve set up a special alert to contact members of this important committee.

Go to our Take Action/Alert site:
http://capwiz.com/illustratorspartnership/home/

Look for the sample letter labeled "Contact House Judiciary Committee NOW" and send it. If your Representative is not a member of the House Judiciary Committee, this will send him a message asking him to contact his colleagues on that Committee on your behalf, urging them to oppose the bill.

2. Ask for support from family and friends:

Please ask your friends and family (5 to 10 others) who support your creative work to also go to the site. They can follow the instructions to easily send a message of opposition to this reckless bill. Look for the sample letter labeled "For Supporters of Visual Artists - Wrong to Weaken Copyright Law" and send it.

3. Spread the word to the public: Photosharing on Web will now be at risk:

Please alert your friends who post photos to the web their personal property will be at risk. Look for the sample letter labeled “For the Image-Making Public - Protect Personal Property”and send it.

For more information about the Orphan Works Act of 2008:

IPA Statement to House Subcommittee March 20, 2008
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00261

IPA Senate Mark-up Comments April 30, 2008 http://www.illustratorspartnership.org/ow_docs

Geneva/ May 7, 2008 Orphan Works Bill Catches Global Attention, Intellectual Property Watch
http://www.ip-watch.org/weblog/index.php?p=1028

MP3 Interview http://www.sellyourtvconceptnow.com/orphan.html

YouTube http://youtube.com/watch?v=CqBZd0cP5Yc

Take Action: Don't Let Congress Orphan Our Work

We’ve set up an online site for visual artists to e-mail their Senators and Representatives with one click.

This site is open to professional artists, photographers and any member of the image-making public.

We’ve provided sample letters from individuals representing different sectors of the visual arts.

If you’re opposed to the Orphan Works act, this site is yours to use.

For international artists and our colleagues overseas, we’ve provided a special link, with a sample letter and instructions as to whom to write.

2 minutes is all it takes to write Congress and protect your copyright:

http://capwiz.com/illustratorspartnership/home/

Open Forum on Orphan Works

Don’t Let Congress Orphan Your Work
An open forum to oppose the Orphan Works Act of 2008
Tuesday, May 6 6:00 PM
The Society of Illustrators
128 East 63rd Street
New York, NY 10065
Admission will be free

The Orphan Works Act of 2008 will endanger the rights of anyone who creates intellectual property.

It will expose your art to commercial infringement. It will include work from professional paintings to family snapshots. It will include published and unpublished work. It will include any image that resides or has ever resided on the internet. It will force you to register every picture you do with privately-held commercial registries. It will make all unregistered works potential orphans.

This radical change to U.S. copyright law will shift the burden of diligence from infringers to rights holders. It is wrong to give infringers the right to make money from your property without your knowledge or consent. You should not have to pay businessmen to keep the work you’ve created.

The Orphan Works Act is an assault on national and international copyright laws. It’s an assault on the property and privacy rights embodied in them.

Illustrators, photographers, fine artists: let’s come together and act to keep Congress from orphaning our work.

This event will be recorded for later webviewing

Panelists:

Terry Brown Director, American Society of Illustrators Partnership, Director Emeritus, Society of Illustrators

Constance Evans Executive Director, Advertising Photographers of America, artist

Dr. Theodore Feder President, Artists Rights Society

Brad Holland Artist, Co-Founder, Illustrators Partnership

Cynthia Turner Medical Illustrator, Board Member, Illustrators Partnership

William Vasquez Photographer, Co-Chair, Advertising Photographers of America/NY Chapter

To learn more about the Orphan Works Bill, listen to the interview with Brad Holland:

mp3 version:http://www.sellyourtvconceptnow.com/orphan.html

YouTube version:http://youtube.com/watch?v=CqBZd0cP5Yc