FROM THE ILLUSTRATORS’ PARTNERSHIP
The Orphan Works Express
Congress is scheduled to commence Orphan Works hearings the first week in March. They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.
The spin that’s being put on this legislation is shrewd. Special interest groups have re-defined copyright users as “creators” of “transformative works.” They're trying to persuade lawmakers that these “creators” - and therefore, creators in general - are being hampered because of obsolete protections on work which has “little or no commercial value.” Yet the omnibus measures proposed in this Report would affect any work - old or new –that’s been published without identifying information. This would apply disproportionately to illustrations and photographs. We need to make it clear to congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.
Orphan Works legislation would be retroactive. This means that all the work you’ve done during the last 28 years could fall into the Orphan Works category if it was ever published without “relevant information” on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture you’ve ever done – published without “identifying information” on it - or with that information removed by others – to justify an infringer’s claim that he was unable to locate the author. The same thing would be true, of course, for future work.
Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer –if detected - is that a court might make him pay you a “reasonable fee.” This means there’d be no real downside for infringing. For 28 years (since the 1976 Copyright Act went into effect), you’ve been told that your work was protected “from the moment you put pen to paper.” No more. And artists who for 28 years produced work with the confidence that it was protected by that promise will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades.
The plan in a nutshell. For years, Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright “formalities” such as marking and registration. This would aid the spread of “free culture” because most artists would fail to mark and register their work (or marks could be removed). This would make a vast number of illustrations and photographs royalty-free for anyone to use - or for companies like Google to sell access to.
Unfortunately for the free culturists, the US can’t re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt American trade.
So the Copyright Office has crafted their orphan works proposal as a “limitation on remedies.” This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without “relevant information” on the picture itself. In effect, this would force artists – as a hedge against infringement – to re-impose on themselves the “formalities” the government can’t. Any artist who didn’t mark his work would expose it to no-fault infringement - a very clever way to re-impose formalities without actually putting it in writing.
Remember, this is all being done in the name of promoting creativity by artists. That’s why we, as artists, will have to speak up in numbers. We have to show lawmakers that the Free Culture movement - and the creative wannabes who comb the internet looking for royalty-free work - do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.
What you can do. In their effort to speed this legislation through Congress, the plan's shepherds are severely limiting testimony for and against it. That’s why your letters are important. Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don't have to write a complicated letter, but it's important that you make certain points:
-Make it clear that you’re an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.
-Make it clear that you will never have the resources to police infringement of your work - which could occur at any time anywhere in the world.
-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.
-Make it clear that your work has significant commercial value.
For artists, this legislation would be a major revision of copyright law. The Orphan Works Report calls for a 10 year “sunset provision,” which means that Orphan Works legislation – once passed - will not be subject to reconsideration for another10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them. And after 10 years of copyrighted work turning royalty-free, the market for art will be so deformed – and expectations in the marketplace so settled – that there’ll be no going back. We can’t wait until this law gets “reviewed” 10 years from now to express ourselves on it.
The government should not be allowed to create a royalty-free stockhouse out of artists’ work. Please write as soon as you can.
-Brad Holland, for the Board of the Illustrators’ Partnership
To write Congress: Follow the instructions Cynthia Turner has outlined on the IPA website:
You may post responses or ask questions on these forums. First-time users will be asked to register.
-For additional information, also see: “Call To Action To Prevent The Orphan Works Amendment To Copyright Law”
and “Free Culture-The Copy Left Is Not Right.”
This email may be posted and/or forwarded in its entirety to any interested party.
I don't agree with everything it says. For instance, it singles out Creative Commons advocates. Creative Commons is a voluntary license artists who want to release their work for free public consumption can use to avoid yielding all their rights to the material and allow them to enforce their copyright against people who use the material without giving proper credit. Think GPL for works of art.
The important point is, it's the artist's choice. The measure before Congress right now removes that choice. I support Creative Commons, and I'm against this measure.