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Orphan Works – No Myth by Brad HollandWe’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites. How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced
in 2006, but it was never voted on.
Q: So if the bill is dead, why warn everybody about it now? “Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring... “American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we’re on the edge of our seats.’” -Intellectual Property -Progress Seen on Developing ‘Orphan Works’ Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going
to be in it?
“Subcommittee chairman Howard Berman made it quite clear that he
intends to introduce new orphan works legislation shortly... It is likely
the new bill will look very similar to The Orphan Works Act of
2006.”
Q: But if it’s due out shortly, why not wait until it’s been introduced
before we oppose it?
“Since this is an election year, and re-election campaigns will be
in full swing by late summer, new orphan works legislation will probably
be fast-tracked to reach the floor of the House by mid-May."
Q: Do we have any direct corroboration for these press reports?
Q: Where did we get the idea that the Copyright Office wants to impose for-profit
registries?
“[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...” 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
This exchange suggests that if Copyright Office proposals become law:
Q: What does it mean to say your copyright is an “exclusive
right”
Q: Why does this exclusive right matter?
Q: So how would the Orphan Works proposals endanger that right?
Q: So?
Q: But the “orphan works problem” isn’t just something
dreamed up by evil corporations to steal your vacation photographs. It’s
an actual problem faced by academics, librarians, and others. “A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“[I]t is important to realize that the [1976] bill would not restrain
scholars from using any work as source material or from making ‘fair
use’ of it; the restrictions would extend only to the unauthorized
reproduction or distribution of copies of the work, its public performance,
or some other use that would actually infringe the copyright owner’s
exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at
136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works
Report
Q: But the backers of the Orphan Works bill say it would merely amend the
law to solve the problem of old work whose owners can’t be found.
Q: How would it orphan “any work by any artist, living or dead”?
“Put simply, if a picture is unmarked, it’s impossible to source
or date it. Therefore this amendment would orphan millions of valuable copyrights
that cannot otherwise be distinguished from true orphaned works - and that
would open the door to cultural theft on an unprecedented
scale.”
Q: But the Copyright Office says the infringer would first have to make a
“reasonably diligent search” to find the copyright holder.
Q: Why registries?
Q: And the problem with that is?
Q: But if you do become aware of an infringement, you can always claim a
“reasonable fee” from the user.
Q: But what if you do sue an infringer and win? Then can’t the court
award you full costs, including a reasonable attorney’s fee? “Under current law, infringement cases follow two scenarios: “Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn’t have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer. “Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small. “Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.” Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory
damages and attorneys fees should not be available [to copyright owners]
because those remedies create the most uncertainty in the minds of users
(emphasis added).” - Page 7/Orphan Works Report
Q: The Copyright Office says that user certainty is “essential to
encouraging the use of the [orphaned] work.” -Page 7/Orphan Works
Report 2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself. 3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work. 4. But uncertainty is the only mechanism the law gives you to protect your work from thieves. 5. There is no Copyright Bureau of Investigation; no Copyright Police Force. 6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you. 7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So 8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway. 9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because 10. If a bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees. 11. This is a powerful incentive for a thief not to risk stealing our work. 12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides. Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours. The Dog that Didn’t BarkIn 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists. Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog: Carson: Copyright owners will have to register their images with private registries.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!This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself. In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental
importance of precisely defining the category of ‘orphan’ works.
The broader the category, or the lower the bar to making the requisite showing
of due diligence, the greater the risk of inconsistency with our international
obligations to uphold authors’ exclusive rights under copyright. Compliance
with Berne/TRIPs is required by more than punctilio; these rules embody an
international consensus of national norms that in turn rest on long experience
with balancing the rights of authors and their various beneficiaries, and
the public. Thus, in urging compliance with these technical-appearing rules,
we are also urging compliance with longstanding practices that have passed
the test of time (emphasis added).” -Item 1/page 1 Orphan Works
Reply Comments It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:
“If our recommendation resolves users’ concerns in a satisfactory
way, it will likely be a comprehensive solution to the orphan works situation
(emphasis added).”
Yet any law that permits users to commercialize the private property of others
cannot be “comprehensive” if it “prejudices the legitimate
interests of the copyright holders.” See Article 13/The Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them? The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way: “If you find a creative work, you may not know who created it, but you know you didn’t.” Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society. - Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership. The author has given his permission to post or forward this article in its entirety to any interested party.Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business, “Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly http://www.newyorkartworld.com/commentary/holland.html“First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law http://weblog.ipcentral.info/holland_ColumbiaLaw.pdfCynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies. |
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