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.
Wednesday, October 1, 2008
Tuesday, September 30, 2008
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:
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
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
Monday, September 29, 2008
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:
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:
And in case the point needed elaboration:
The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:
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:
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.
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.
Sunday, September 28, 2008
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 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.
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.
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.
Saturday, September 27, 2008
Orphan Works Opposition: Plan B
SEPT 27 Yesterday, in a cynical move, the sponsors of the Senate Orphan Works Act passed their controversial bill by a controversial practice known as hotlining.
With lawmakers scrambling to raise 700 billion dollars to bail out businesses that are “too big to fail,” the Senate passed a bill that would force small copyright holders to subsidize big internet interests such as Google, which has already said it plans to use millions of the images this bill will orphan.
With the meltdown on Wall Street, this is no time for Congress to concentrate our nation’s copyright wealth in the hands of a few privately owned corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel creators to risk their own intellectual property to supply content to these corporate business models. That means it would be our assets at risk in the event of their failure or mismanagement.
As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.
– Brad Holland and Cynthia Turner, for the Illustrators’ Partnership
NOW FOR PLAN B
We MUST try to stop the House Judiciary Committee from folding their bill (HR5889) and adopting the Senate version.
PLEASE EMAIL CONGRESS TODAY.
If you’ve done it before, do it again!
It takes only a minute to use our new special letter.
Click on the link below, enter your zip code, and take the next steps.
Thanks to all of you who heeded the call to action yesterday.
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321
Over 70 organizations oppose this bill, representing over half a million creators.
Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. The Illustrators Partnership Capwiz site is open to professional creators and any member of the image-making public.
With lawmakers scrambling to raise 700 billion dollars to bail out businesses that are “too big to fail,” the Senate passed a bill that would force small copyright holders to subsidize big internet interests such as Google, which has already said it plans to use millions of the images this bill will orphan.
With the meltdown on Wall Street, this is no time for Congress to concentrate our nation’s copyright wealth in the hands of a few privately owned corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel creators to risk their own intellectual property to supply content to these corporate business models. That means it would be our assets at risk in the event of their failure or mismanagement.
As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.
– Brad Holland and Cynthia Turner, for the Illustrators’ Partnership
NOW FOR PLAN B
We MUST try to stop the House Judiciary Committee from folding their bill (HR5889) and adopting the Senate version.
PLEASE EMAIL CONGRESS TODAY.
If you’ve done it before, do it again!
It takes only a minute to use our new special letter.
Click on the link below, enter your zip code, and take the next steps.
Thanks to all of you who heeded the call to action yesterday.
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321
Over 70 organizations oppose this bill, representing over half a million creators.
Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. The Illustrators Partnership Capwiz site is open to professional creators and any member of the image-making public.
Tuesday, September 23, 2008
Orphan Works: Risking Our Nation’s Copyright Wealth
Is it wise to concentrate our nations’ copyright wealth in the hands of a few corporate databases? With the meltdown on Wall Street, this might be a good time to ask Congress that question.
Here are some of the questions we’ve raised before about this bad legislative scheme:
Sound familiar? As we watch CEOs with Golden Parachutes bail out of investment banks and the government saddles taxpayers with the financial burden of propping them up, we should remind Congress that the true definition of capitalism is not a lot of big businesses trying to gobble each other up or maximize profits by cutting corners. True capitalism is a lot of small business owners taking responsibility for their own decisions and accepting responsibility for their own failures. As David Rhodes went on to say:
– Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Here are some of the questions we’ve raised before about this bad legislative scheme:
• Who’s to be trusted with these databases?In an excellent statement prepared for the Small Business Roundtable, August 8, 2008, David Rhodes, President of the School of Visual Arts said this:
• Who’s to manage them and in whose best interests?
• What happens when a database is hacked?
• What happens when one fails?
• What happens when one is acquired?
• What happens when the terms of service are changed?
• What happens when registration fees become prohibitive?
• What happens when maintenance fees are piled on?
• What happens when exorbitant commissions are imposed?
• What happens to artists who can’t afford to register?
• What happens when registered artists can’t afford to maintain their registrations?
• Will artists have to register their immense bodies of work in competing registries?
• What happens to your business when your clients start calling the databases, not you, to clear rights to your work?
• Why should small business owners be forced to entrust their business information to outside business interests?
“[S]ince the expense of registering works [with these for-profit databases] will be born by the creative community, the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized.”
Sound familiar? As we watch CEOs with Golden Parachutes bail out of investment banks and the government saddles taxpayers with the financial burden of propping them up, we should remind Congress that the true definition of capitalism is not a lot of big businesses trying to gobble each other up or maximize profits by cutting corners. True capitalism is a lot of small business owners taking responsibility for their own decisions and accepting responsibility for their own failures. As David Rhodes went on to say:
“Copyright protection may have impeded the creation of ever-larger image banks, but that is not a problem - that is the purpose of Copyright. In short there is no problem that this legislation will fix. Therefore, prudence dictates that nothing be done.”
– Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Monday, September 15, 2008
The Orphan Works Act: Responses to the House Judiciary Committee
The following statements about the Orphan Works Act were sent from the House Judiciary Committee to a Congressman. The Congressman asked for responses from visual artists. The language in the statements is quoted verbatim from the Judiciary Committee document.
Judiciary Committee: An infringement today will continue to be one after enactment of orphan works legislation. Critics of orphan works measures frequently seem to miss this point, often wrongly suggesting that an orphan works law will legitimize infringing acts.
Illustrators' Partnership: No one is missing the point. Under this bill, infringements may continue to be infringements, but millions will be infringements in name only. That’s because these bills would remove any effective remedy for the infringement whenever the infringer can successfully assert an orphan works defense. The defense need not be valid, only successful. That means we’ll see millions of so-called “good faith” infringements, among which bad actors will be able to hide like needles in a haystack.
What bad actor, if caught, will have a Perry Mason Moment and admit he’s guilty of willful infringement? Not if he can assert an orphan works defense and dare the artist to sue. And under this bill, any artist who sues will have to be sure of winning, because without the possibility of statutory damages and attorneys’ fees, it’ll be too expensive to lose. Since lawyers will be unwilling to accept such cases on contingency (because there’s no guarantee the infringer will have to pay), this law will effectively deprive rights holders of legal counsel, expert witnesses, court costs, etc. - the very tools they’d need to legally prove bad faith.
Judiciary Committee: Orphan works proposals are tailored to address the remedies that will be available under certain prescribed circumstances. In an instance where a good faith user has performed and documented a qualifying search and satisfied each of the other statutory conditions (i.e. filed a notice of use with the Copyright Office, placed an orphan notice on their use, etc.) the user will ordinarily be subject to the payment of reasonable compensation to the owner of the orphaned work if that owner is later identified.
Illustrators' Partnership: Note the key phrase: “if that owner is later identified.” Infringements can occur anytime, anywhere in the world, so most will never be discovered by rights holders. This undermines the case for “reasonable compensation,” because compensation can’t be reasonable if it’s never paid.
Judiciary Committee: Reasonable compensation is intended to reflect the amount a willing buyer and willing seller would have negotiated for a licensed use prior to the infringement. Contrary to popular criticism, [reasonable compensation] is not an amount that must be accepted by an owner that is dictated by the user after infringement.
Illustrators' Partnership: Several points:
Judiciary Committee: [Reasonable compensation] is intended to approximate the results of a market-place negotiation. In many cases, reasonable compensation will approximate the amount a copyright owner would have received as actual damages. The amount may also approximate the amount of statutory damages that would have been awarded by a court.
Illustrators' Partnership: Regardless of whatever the bill is “intended” to do, these intentions are unlikely to translate so cleanly into the rough and tumble of the marketplace. In real life, it’s safe to assume that serial infringers of orphan works will establish low “reasonable” fees, which will effectively become the legal standard for “reasonable compensation” in lawsuits regarding orphan work uses. Artists might never agree to these low fees if contacted “prior to infringement,” but they’d have no choice but to accept them if “offered” after the fact.
Judiciary Committee: The House bill requires that the user of an orphan work engaged in a qualified search to identify the owner prior to and proximate to the use; that the search was properly documented; that a notice of use was filed with the Copyright Office; that detailed best practices to be promulgated by the Copyright Office for conducting such a search were followed; or that an orphan works symbol was placed on the infringing use.
Illustrators' Partnership: These provisions are of no use to a rights holder unless he goes to court. And as business people, we make our livings from voluntary business transactions, not expensive lawsuits with all the uncertainty that comes with them.
In fact, uncertainty in commercial markets will be this bill’s chief legacy. The language of the drafts defines an infringer’s “qualifying search” as one that is reasonably diligent. But reasonable diligence is never defined. The Copyright Office has said that these ambiguous terms will be left to the courts to define on a case-by-case basis. But since any work might become an orphan in one legal proceeding and not in another, it’ll take a decade of expensive lawsuits and appeals to learn how the law will ultimately define these vague terms. Since artists are unlikely to have the resources for litigation, infringers may generally win by default. Why should copyright owners have to go to court on a regular basis to contest the diligence of an infringer’s search or to prove the value of their own property for uses they never authorized?
Judiciary Committee: As an explicit measure to discourage malicious actors who might seek to exploit the orphan works limitation in furtherance of commercial piracy, the House bill was expressly amended to prohibit the limitation from being used in connection with the production of useful articles (i.e. coffee mugs, wallpaper, rugs, clothing, etc.). So the [use of art on a] coffee mug [for] example is expressly prohibited by the House bill even in a circumstance where the user theoretically sought to meet the aforementioned statutory pre-conditions.
Illustrators' Partnership: Commercial piracy is not limited to rip-offs of art on “useful articles.” If the bill’s drafters have exempted designs for coffee mugs, wallpaper, rugs and clothing, then they’ve conceded that the bill will lead to the piracy of visual art. Having acknowledged that, why would they permit other forms of art to be pirated? Are designs on coffee mugs more deserving of protection than medical illustrations, editorial cartoons, news photos, book illustrations, advertising art, fine art?
Judiciary Committee: There is no present requirement for an author to register their work or place a copyright notice on it to qualify for the protection of U.S. copyright law. It is false that registration will become mandatory after the enactment of orphan works legislation. There is nothing in either the House or Senate versions of the bills that will require copyright owners to register their works or place copyright notices on them to enjoy copyright protection.
Illustrators' Partnership: That’s because Congress cannot ”require” artists to register their work without openly violating the Berne Convention, NAFTA, TRIPS, WIPO and WTO treaties. Yet in reality, the effect of this legislation will be the same as compulsory registration: artists who don’t register their work will find it vulnerable to orphan infringement. Or to put it another way: the bill would not impose registration on rights holders; it will just endanger the work of those who don’t impose registration on themselves.
Judiciary Committee: As previously noted, a "user" of an orphan work will be required by the House bill to, inter alia, file a "notice of use" with the Copyright Office prior to use and required to place an orphan works symbol, which will be prescribed by the Copyright Office, on their work.
Illustrators' Partnership: As currently written, the “notice of use” is a dark archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless:
As for the orphan works symbol to be “prescribed by the Copyright Office” and placed on all so-called orphaned work: it will act as a “come-and-get-it notice,” signaling to new infringers that a copyrighted work has already been orphaned by previous infringers and is therefore free for further exploitation.
Judiciary Committee: Orphan Works critics claim that copyright protection will no longer exist at the moment of creation under an orphan works structure, that new requirements will be imposed. No new statutory requirements are imposed on copyright owners to establish protection or ownership nor is the manner for determining ownership altered by the House bill. (Italics added)
Illustrators' Partnership: Note the modifier “statutory.” To repeat, we understand that the Copyright Office cannot propose statutory registration requirements. That would explicitly violate international copyright law and copyright-related treaties. Instead, the Copyright Office has proposed that Congress “limit” the remedies for Infringement: this pulls the teeth out of copyright law because:
Judiciary Committee: [Critics charge that c]opyright owners will be statutorily required to "register" their works with private databases that have yet to be created to protect their exclusive rights in an orphan works environment. There is no such requirement in the House bill.
Illustrators' Partnership: For the third time: we acknowledge that international agreements with our foreign trading partners prohibit Congress from “statutorily” requiring registration. But the proposal for commercial registries (now referred to in the bill as “databases”) has been there from the beginning. See page 106 of the Copyright Office’s 2006 Report on Orphan Works:
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
The fact that this law would orphan unregistered work presents copyright owners with a Hobson’s Choice: either digitize your life’s work and metadata at your own expense and entrust it to privately-owned commercial “databases” or - see it exposed to potential infringement. But why should any rational business person voluntarily give access to his commercial inventory and client contact information to outside business interests?
Judiciary Committee: One of the ends of orphan works legislation is to facilitate the ability of copyright owners to receive greater compensation for the use of their works.
Illustrators' Partnership: If this were true, we would not be spending our own time and money opposing this bill. But in fact over 60 creators organizations do oppose it: http://capwiz.com/illustratorspartnership/home/ These groups represent hundreds of thousands of illustrators, photographers, fine artists, writers, songwriters, performers and countless small businesses that serve and are dependent on the creative community.
Judiciary Committee: To facilitate [licensing] transactions, it is desirable and necessary for prospective users to have the means of identifying the owner of the work as well as the ability to contact them to seek to negotiate a license.
Illustrators' Partnership: Absolutely true, but it’s incorrect to assume this bill is necessary for that purpose. As successful business people, we don’t need government to legislate a quasi-compulsory license to replace our voluntary business transactions. We know how to make ourselves available to clients and we know how to negotiate licenses.
According to the Licensing Industry Merchandising Association, licensing is now a $187 billion dollar industry. Creators are responsible for a robust sector of the U.S. economy. We employ and support agents, directories, source books, web sites, archives, internet portals and other advertising venues to make ourselves available to users. Not only we, but all these hundreds of thousands of small businesses will be harmed, not helped, by a bill that removes effective protections for the work we create and trade in.
Judiciary Committee: The more owners voluntarily contribute to the creation of a meaningful and accessible public record of their works, which includes licensing information, the better for all parties. This includes the owner, potential users who are searching for them and the general public who will benefit from new uses of creative works.
Illustrators' Partnership: Again, why should any business owner be required to give his licensing information to outside business interests? Consider the potential for unauthorized use or abuse! Moreover, many artists, such medical illustrators, frequently enter into confidentially agreements with their clients, agreeing to protect their clients’ trade secrets, patient or victim information and medical litigation materials from exploitation. These agreements would preclude them from displaying their work and client information in a public record.
Judiciary Committee: While the law will not, in any way, require owners to register their works or copyright information with any private entity, the fact is that the easier it is for an owner to be identified and located, the less likely it is that a user will be able to prevail in the assertion of a claim that the work was an orphan and that the owner could not be identified and/or located.
Illustrators' Partnership: For the fourth time: to say that the law will not “require” registration is misleading. The problem with “voluntary” registries is that you can’t find a picture in a registry if it’s not there. That means that any picture – published or unpublished, professional or personal – that hasn’t been registered in one of these commercial databases could be declared an orphan for legal purposes, even if the artist is alive, easily accessible to clients and prudently managing his copyrights.
Registries would merely benefit two classes: a.) infringers – who could use a non-productive search to declare unfound works as orphans; and b.) owners of registries, who could cut themselves in on the multi-billion dollar licensing industry, currently functioning well without them.
Judiciary Committee: [But] if the owner can be easily found, then the orphan works limitation will in no way restrict the range of damages that are available to them in an instance of infringement. (Italics added.)
Illustrators' Partnership: Several points:
Judiciary Committee: [Critics charge that] orphan works bill will change the laws that relate to the group registration of photographs and the registration of other types of collected works. Among other things, [they say] the expense to register will increase exponentially since works will all need to be registered individually. Nothing in the bills requires or supports this allegation.
It is true that there are already intrinsic and systematic limitations on the ability to search for individual works that are registered as part of a "group" or "collection." Today, there is no meaningful public record of individual works that an owner chooses to register in this fashion. This situation results, in part, from the persistent desire of copyright owners to limit the expense of registration. But the decision to register works individually or collectively is today an independent decision that is exercised by owners who presumably conduct a cost-benefit analysis of the value of individual registration. Nothing in the House bill mandates changes here nor fundamentally alters this cost-benefit analysis calculation. That said, the Congress may, independent of whether or not an orphan works bill is enacted, want to consider potential improvements in the copyright registration process in an oversight or legislative capacity but the timing for doing so as well as any decision to do so is speculative.
Illustrators' Partnership: At the recent SBA Roundtable (see below), one photographer said he had already registered over half a million images with the Copyright Office. Yet under this bill, he’d have to “voluntarily” re-register every single one of those images again, this time with privately-owned databases. How many databases? Who knows? And when a database fails, would he have to re-register his work again and again?
Under this bill, every rights holder will face this issue because:
Judiciary Committee: Much of the confusion about the potential impact of orphan works legislation appears to derive from a misperception about the eligibility and availability of statutory damages to owners in infringement actions. Statutory damages are not ordinarily available to copyright owners. They are available to only those copyright owners who have registered the particular work that is infringed with the Copyright Office prior to the infringement or within three months of publication. When available, statutory damage awards generally range from $750 to $30,000. Where the infringement is proven by the owner to have been willful, the court, in its discretion, may increase the statutory damage award up to $150,000.
Illustrators' Partnership: The issue of statutory damages is a real one and we’ve already addressed it. But debating it apart from its impact on business misses the point. Artists rarely go to court and would prefer never to have to. We oppose the Orphan Works Act for fundamental reasons: it’s a bill too far!
In drafting this legislation, the Subcommittee has relied on the 2006 Report on Orphan Works issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. Their study did not inquire about the workings of commercial markets and there is no evidence in their report that a market failure in commercial markets exists. This fact was summarized in a joint position paper published July 15, 2008 by the Association of Independent Music Publishers & the California Copyright Conference:
Because the Copyright Office never presented evidence to justify their proposed changes to commercial markets, hundreds of thousands of creators respectfully ask that this bill be withheld until it can be re-written as a true orphan works bill. Three groups: The Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments that would do that. These amendments can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html
Brad Holland
Illustrators’ Partnership
9.1.08
Judiciary Committee: An infringement today will continue to be one after enactment of orphan works legislation. Critics of orphan works measures frequently seem to miss this point, often wrongly suggesting that an orphan works law will legitimize infringing acts.
Illustrators' Partnership: No one is missing the point. Under this bill, infringements may continue to be infringements, but millions will be infringements in name only. That’s because these bills would remove any effective remedy for the infringement whenever the infringer can successfully assert an orphan works defense. The defense need not be valid, only successful. That means we’ll see millions of so-called “good faith” infringements, among which bad actors will be able to hide like needles in a haystack.
What bad actor, if caught, will have a Perry Mason Moment and admit he’s guilty of willful infringement? Not if he can assert an orphan works defense and dare the artist to sue. And under this bill, any artist who sues will have to be sure of winning, because without the possibility of statutory damages and attorneys’ fees, it’ll be too expensive to lose. Since lawyers will be unwilling to accept such cases on contingency (because there’s no guarantee the infringer will have to pay), this law will effectively deprive rights holders of legal counsel, expert witnesses, court costs, etc. - the very tools they’d need to legally prove bad faith.
Judiciary Committee: Orphan works proposals are tailored to address the remedies that will be available under certain prescribed circumstances. In an instance where a good faith user has performed and documented a qualifying search and satisfied each of the other statutory conditions (i.e. filed a notice of use with the Copyright Office, placed an orphan notice on their use, etc.) the user will ordinarily be subject to the payment of reasonable compensation to the owner of the orphaned work if that owner is later identified.
Illustrators' Partnership: Note the key phrase: “if that owner is later identified.” Infringements can occur anytime, anywhere in the world, so most will never be discovered by rights holders. This undermines the case for “reasonable compensation,” because compensation can’t be reasonable if it’s never paid.
Judiciary Committee: Reasonable compensation is intended to reflect the amount a willing buyer and willing seller would have negotiated for a licensed use prior to the infringement. Contrary to popular criticism, [reasonable compensation] is not an amount that must be accepted by an owner that is dictated by the user after infringement.
Illustrators' Partnership: Several points:
- Since orphan works transactions will occur only after infringement, the copyright owner will have no leverage to bargain for more than the infringer is willing or able to pay.
- Unless the owner accepts the infringer’s offer, he’ll have to go to federal court.
- If the court accepts the infringer’s claim that the infringer made a reasonably diligent effort to find the owner,
- Then it becomes the owner’s burden to prove the market value of his work; but
- To prove this, the owner will have to prepare a legal case with expert witnesses;
- These are expenses the owner will not be able to recover from the infringer.
- Filing fees, legal expenses and court costs could well exceed the so-called “reasonable fee.”
- And now the Catch 22:
- There’d be no limit to the amount of damages and legal fees the infringer could get from the owner in a countersuit.
Judiciary Committee: [Reasonable compensation] is intended to approximate the results of a market-place negotiation. In many cases, reasonable compensation will approximate the amount a copyright owner would have received as actual damages. The amount may also approximate the amount of statutory damages that would have been awarded by a court.
Illustrators' Partnership: Regardless of whatever the bill is “intended” to do, these intentions are unlikely to translate so cleanly into the rough and tumble of the marketplace. In real life, it’s safe to assume that serial infringers of orphan works will establish low “reasonable” fees, which will effectively become the legal standard for “reasonable compensation” in lawsuits regarding orphan work uses. Artists might never agree to these low fees if contacted “prior to infringement,” but they’d have no choice but to accept them if “offered” after the fact.
Judiciary Committee: The House bill requires that the user of an orphan work engaged in a qualified search to identify the owner prior to and proximate to the use; that the search was properly documented; that a notice of use was filed with the Copyright Office; that detailed best practices to be promulgated by the Copyright Office for conducting such a search were followed; or that an orphan works symbol was placed on the infringing use.
Illustrators' Partnership: These provisions are of no use to a rights holder unless he goes to court. And as business people, we make our livings from voluntary business transactions, not expensive lawsuits with all the uncertainty that comes with them.
In fact, uncertainty in commercial markets will be this bill’s chief legacy. The language of the drafts defines an infringer’s “qualifying search” as one that is reasonably diligent. But reasonable diligence is never defined. The Copyright Office has said that these ambiguous terms will be left to the courts to define on a case-by-case basis. But since any work might become an orphan in one legal proceeding and not in another, it’ll take a decade of expensive lawsuits and appeals to learn how the law will ultimately define these vague terms. Since artists are unlikely to have the resources for litigation, infringers may generally win by default. Why should copyright owners have to go to court on a regular basis to contest the diligence of an infringer’s search or to prove the value of their own property for uses they never authorized?
Judiciary Committee: As an explicit measure to discourage malicious actors who might seek to exploit the orphan works limitation in furtherance of commercial piracy, the House bill was expressly amended to prohibit the limitation from being used in connection with the production of useful articles (i.e. coffee mugs, wallpaper, rugs, clothing, etc.). So the [use of art on a] coffee mug [for] example is expressly prohibited by the House bill even in a circumstance where the user theoretically sought to meet the aforementioned statutory pre-conditions.
Illustrators' Partnership: Commercial piracy is not limited to rip-offs of art on “useful articles.” If the bill’s drafters have exempted designs for coffee mugs, wallpaper, rugs and clothing, then they’ve conceded that the bill will lead to the piracy of visual art. Having acknowledged that, why would they permit other forms of art to be pirated? Are designs on coffee mugs more deserving of protection than medical illustrations, editorial cartoons, news photos, book illustrations, advertising art, fine art?
Judiciary Committee: There is no present requirement for an author to register their work or place a copyright notice on it to qualify for the protection of U.S. copyright law. It is false that registration will become mandatory after the enactment of orphan works legislation. There is nothing in either the House or Senate versions of the bills that will require copyright owners to register their works or place copyright notices on them to enjoy copyright protection.
Illustrators' Partnership: That’s because Congress cannot ”require” artists to register their work without openly violating the Berne Convention, NAFTA, TRIPS, WIPO and WTO treaties. Yet in reality, the effect of this legislation will be the same as compulsory registration: artists who don’t register their work will find it vulnerable to orphan infringement. Or to put it another way: the bill would not impose registration on rights holders; it will just endanger the work of those who don’t impose registration on themselves.
Judiciary Committee: As previously noted, a "user" of an orphan work will be required by the House bill to, inter alia, file a "notice of use" with the Copyright Office prior to use and required to place an orphan works symbol, which will be prescribed by the Copyright Office, on their work.
Illustrators' Partnership: As currently written, the “notice of use” is a dark archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless:
- you discover you’ve been infringed;
- you sue the infringer in federal court;
- the infringer asserts an Orphan Works defense.
- Only then can you file a request to see if your work is in the archive.
- In other words, the notice of use is of no probative value to the rights holder at all, unless by luck, he finds that he’s been infringed and has to go to court.
As for the orphan works symbol to be “prescribed by the Copyright Office” and placed on all so-called orphaned work: it will act as a “come-and-get-it notice,” signaling to new infringers that a copyrighted work has already been orphaned by previous infringers and is therefore free for further exploitation.
Judiciary Committee: Orphan Works critics claim that copyright protection will no longer exist at the moment of creation under an orphan works structure, that new requirements will be imposed. No new statutory requirements are imposed on copyright owners to establish protection or ownership nor is the manner for determining ownership altered by the House bill. (Italics added)
Illustrators' Partnership: Note the modifier “statutory.” To repeat, we understand that the Copyright Office cannot propose statutory registration requirements. That would explicitly violate international copyright law and copyright-related treaties. Instead, the Copyright Office has proposed that Congress “limit” the remedies for Infringement: this pulls the teeth out of copyright law because:
- Remedies for infringement are the only means rights holders have to protect their work from thieves.
- There is no Copyright Bureau of Investigation; no Copyright Police Force.
- Rights holders have to police their own copyrights, and
- Penalties for infringement are the only weapon the law gives us.
- Remove those penalties and you remove uncertainty in the minds of bad actors.
- Under current law, if an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it may not be registered.
- He may guess correctly but – he can’t be sure.
- This uncertainty is the key safeguard against infringement, because
- If the bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
- This is a powerful incentive for a thief not to risk stealing work. So
- In the real world, uncertainty in the mind of a bad actor is the only weapon we have to protect our copyrights.
- Remove that uncertainty and you remove the only realistic safeguard the law provides.
Judiciary Committee: [Critics charge that c]opyright owners will be statutorily required to "register" their works with private databases that have yet to be created to protect their exclusive rights in an orphan works environment. There is no such requirement in the House bill.
Illustrators' Partnership: For the third time: we acknowledge that international agreements with our foreign trading partners prohibit Congress from “statutorily” requiring registration. But the proposal for commercial registries (now referred to in the bill as “databases”) has been there from the beginning. See page 106 of the Copyright Office’s 2006 Report on Orphan Works:
“[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
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
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 my notes of the meeting
The fact that this law would orphan unregistered work presents copyright owners with a Hobson’s Choice: either digitize your life’s work and metadata at your own expense and entrust it to privately-owned commercial “databases” or - see it exposed to potential infringement. But why should any rational business person voluntarily give access to his commercial inventory and client contact information to outside business interests?
Judiciary Committee: One of the ends of orphan works legislation is to facilitate the ability of copyright owners to receive greater compensation for the use of their works.
Illustrators' Partnership: If this were true, we would not be spending our own time and money opposing this bill. But in fact over 60 creators organizations do oppose it: http://capwiz.com/illustratorspartnership/home/ These groups represent hundreds of thousands of illustrators, photographers, fine artists, writers, songwriters, performers and countless small businesses that serve and are dependent on the creative community.
Judiciary Committee: To facilitate [licensing] transactions, it is desirable and necessary for prospective users to have the means of identifying the owner of the work as well as the ability to contact them to seek to negotiate a license.
Illustrators' Partnership: Absolutely true, but it’s incorrect to assume this bill is necessary for that purpose. As successful business people, we don’t need government to legislate a quasi-compulsory license to replace our voluntary business transactions. We know how to make ourselves available to clients and we know how to negotiate licenses.
According to the Licensing Industry Merchandising Association, licensing is now a $187 billion dollar industry. Creators are responsible for a robust sector of the U.S. economy. We employ and support agents, directories, source books, web sites, archives, internet portals and other advertising venues to make ourselves available to users. Not only we, but all these hundreds of thousands of small businesses will be harmed, not helped, by a bill that removes effective protections for the work we create and trade in.
Judiciary Committee: The more owners voluntarily contribute to the creation of a meaningful and accessible public record of their works, which includes licensing information, the better for all parties. This includes the owner, potential users who are searching for them and the general public who will benefit from new uses of creative works.
Illustrators' Partnership: Again, why should any business owner be required to give his licensing information to outside business interests? Consider the potential for unauthorized use or abuse! Moreover, many artists, such medical illustrators, frequently enter into confidentially agreements with their clients, agreeing to protect their clients’ trade secrets, patient or victim information and medical litigation materials from exploitation. These agreements would preclude them from displaying their work and client information in a public record.
Judiciary Committee: While the law will not, in any way, require owners to register their works or copyright information with any private entity, the fact is that the easier it is for an owner to be identified and located, the less likely it is that a user will be able to prevail in the assertion of a claim that the work was an orphan and that the owner could not be identified and/or located.
Illustrators' Partnership: For the fourth time: to say that the law will not “require” registration is misleading. The problem with “voluntary” registries is that you can’t find a picture in a registry if it’s not there. That means that any picture – published or unpublished, professional or personal – that hasn’t been registered in one of these commercial databases could be declared an orphan for legal purposes, even if the artist is alive, easily accessible to clients and prudently managing his copyrights.
Registries would merely benefit two classes: a.) infringers – who could use a non-productive search to declare unfound works as orphans; and b.) owners of registries, who could cut themselves in on the multi-billion dollar licensing industry, currently functioning well without them.
Judiciary Committee: [But] if the owner can be easily found, then the orphan works limitation will in no way restrict the range of damages that are available to them in an instance of infringement. (Italics added.)
Illustrators' Partnership: Several points:
- The presumption that owners of contemporary work can’t be “easily found” is false. An owner may be hard to find if he’s died or abandoned his copyrights – that would be a true orphaned work. But this bill re-defines an orphan as any work by any author that any potential user ever finds hard to find. Sooner or later, that could be every work by every author. This bill will define millions of works as orphans on the premise that some may be.
- Why must an owner be “easily found” by any parties other than those whom the owner chooses to do business with? Is there a national emergency in visual images that requires legislation to regulate this sector of the free market?
- There is no need for government intervention here. We are professionals. We’re alive, working and managing our copyrights. We can be located. Our clients locate us all the time. But that doesn’t mean that anyone anywhere can find us. And frankly, why should it? What if 1000 people can find me but one person can’t? Why should that person get a free pass to use my intellectual property? Won’t that give infringers an incentive not to find rights holders? Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the taking of private property.
- The argument that artists can always resolve orphan works disputes in court is a measure of the bill’s most serious defect: Any law that drives business decisions into the courts is bad for business and bad for the courts.
- We believe our work benefits the public by being published through the channels where we wish to publish it. The current copyright law works by giving us the incentive to keep doing this. But authors’ rights are exclusive. Public interest cannot compel any creator to publish his work. So by what right of eminent domain can government give members of the public the right to publish his work for him? We’re only asking Congress to protect this basic property right.
Judiciary Committee: [Critics charge that] orphan works bill will change the laws that relate to the group registration of photographs and the registration of other types of collected works. Among other things, [they say] the expense to register will increase exponentially since works will all need to be registered individually. Nothing in the bills requires or supports this allegation.
It is true that there are already intrinsic and systematic limitations on the ability to search for individual works that are registered as part of a "group" or "collection." Today, there is no meaningful public record of individual works that an owner chooses to register in this fashion. This situation results, in part, from the persistent desire of copyright owners to limit the expense of registration. But the decision to register works individually or collectively is today an independent decision that is exercised by owners who presumably conduct a cost-benefit analysis of the value of individual registration. Nothing in the House bill mandates changes here nor fundamentally alters this cost-benefit analysis calculation. That said, the Congress may, independent of whether or not an orphan works bill is enacted, want to consider potential improvements in the copyright registration process in an oversight or legislative capacity but the timing for doing so as well as any decision to do so is speculative.
Illustrators' Partnership: At the recent SBA Roundtable (see below), one photographer said he had already registered over half a million images with the Copyright Office. Yet under this bill, he’d have to “voluntarily” re-register every single one of those images again, this time with privately-owned databases. How many databases? Who knows? And when a database fails, would he have to re-register his work again and again?
Under this bill, every rights holder will face this issue because:
- 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;
- The cost and time-consumption to individual artists of registering tens of thousands (or with photographers, hundreds of thousands) of visual works, at even a low fee, would be prohibitive; therefore:
- Under this law, 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, color corrected, keyworded and registered; but
- Few, if any, living artists could afford the time and expense of digitizing and registering a backlog of tens (or hundreds) of thousands of their own works; therefore:
- Countless working artists would find countless existing works vulnerable to infringement from the moment this bill takes effect.
Judiciary Committee: Much of the confusion about the potential impact of orphan works legislation appears to derive from a misperception about the eligibility and availability of statutory damages to owners in infringement actions. Statutory damages are not ordinarily available to copyright owners. They are available to only those copyright owners who have registered the particular work that is infringed with the Copyright Office prior to the infringement or within three months of publication. When available, statutory damage awards generally range from $750 to $30,000. Where the infringement is proven by the owner to have been willful, the court, in its discretion, may increase the statutory damage award up to $150,000.
Illustrators' Partnership: The issue of statutory damages is a real one and we’ve already addressed it. But debating it apart from its impact on business misses the point. Artists rarely go to court and would prefer never to have to. We oppose the Orphan Works Act for fundamental reasons: it’s a bill too far!
In drafting this legislation, the Subcommittee has relied on the 2006 Report on Orphan Works issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. Their study did not inquire about the workings of commercial markets and there is no evidence in their report that a market failure in commercial markets exists. 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.” http://www.brandaideblog.com/pdf/Position_Statement.pdf
Because the Copyright Office never presented evidence to justify their proposed changes to commercial markets, hundreds of thousands of creators respectfully ask that this bill be withheld until it can be re-written as a true orphan works bill. Three groups: The Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments that would do that. These amendments can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html
Brad Holland
Illustrators’ Partnership
9.1.08
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