Orphan Works 2008
House H.R. 5889 & Senate S. 2913
The proposed legislation, if it passes as it is now written,
will change US copyright law. Such a change, as it is now written, will
negatively impact artists of all disciplines (literary, visual, music, etc.),
as well as every US citizen. House H.R. 5889 and Senate S. 2913 differ from
each other BUT both bills are highly problematic and should not pass as
they are now written.
Currently under US copyright- the only legal way to use someone's
work (whether one has officially filed for copyright with the US copyright
office or not) is to find the copyright owner and negotiate for the use.
If you can't find the copyright owner you can NOT legally use the work.
If the proposed current legislation passes as it is now written, that will
change. Under these proposed pieces of legislation, if the copyright owner
or artist cannot be found, anyone will be legally allowed to use or infringe
the works (artwork, music, family photos, films, poems, etc.). One does
not don't lose their copyright, but their work if deemed orphaned, will
be able to be legally infringed upon.
We are deeply concerned that the orphan works legislation
will negatively impact the Visual Artists Rights Act of 1990.
The legislation seems to be moving very quickly and we would
like to ask for there to be a hold on it/slow it down to allow more input
from the artists community and the artists advocate community. There needs
to be direct dialog with the artists advocates and small business advocates
on this legislation.
WHAT IS PROBLEMATIC ABOUT THE LEGISLATION AS IT IS NOW
WRITTEN (Our top 10):
1) The vast majority of artists of any discipline (or US
citizen for that matter) do not copyright their work for many reasons- mainly
due to it being cost prohibitive and impossible in some cases due to the
volume of work they create.
2) The legislation is too broad and does not adequately protect
from commercial use/infringement-or "infringers" being able to
profit from their infringement- this will clearly negatively impact all
artists of every discipline and will enable infringement abuse to occur.
3) The use of orphaned work needs to be clearly defined and
narrowed (personal use that is clearly defined, use for documentarians,
use educational use only for accredited libraries, archives and museums)
with NO commercial infringement privileges or uses of orphan works for charity
or fundraising. (in some cases the "infringer" would be able to
save money by using the orphaned work instead of hiring/commissioning an
artist to create an art work)
4) The legislation allows for someone (a person or a business)
who has done a "search" and can not find the copyright owner to infringe/use
the copyright, but the legislation does not clearly spelled out how long
and what the search will need to entail (note the amended/passed version
of S. 2913 does set a minimum search requirement but it falls far short
of the needed protection).
5) The legislation does not require the "infringer"
to prove they obtained the orphaned work legally or that "the possessor
obtained the legal rights of disposition".
6) The pieces of legislation call for on-line databases or
what would be also called registries to be certified by the Copyright office
for visual artists for to register their work with. No where in the legislation
does it say they are to be free of charge to artists and although the law
does not mandate visual artists to register their work with these databases/registries-
it is clear that these databases/registries will be a key tool for those
to use searching for the copyright owners and a way for them to justify
they did a search. Nor does legislation protect the artists from the private
data base companies for using/selling their artwork/information, etc. The
best answer would be to set up a free public archive for artists of all
disciplines, but again it should be voluntary and NOT required. There will
need to be a free program to help artists be able to put their work into
7) The amount of damages that can be retrieved by the copyright
owner if they "surface" and find their work was deemed and used as an orphan
work (when in fact it was not orphaned) are unacceptable (legal fees need
to be covered).
8) There needs to be a formal way for artists and advocates
to easily work on a regular basis with the Copyright Office to monitor the
current copyright law, ANY change in copyright law, and its impact on artists
and the market. In other words the Copyright Office would be mandated to
have regular meetings with artists advocates and small businesses advocates
on their policies and regulations etc..It also needs to be mandated by the
law and it needs to ensure transparency and accountability. (Note this occurs
in health care policy on many levels).
9) The legislation does not require or mandate the Copyright
office to conduct a national educational outreach campaign to alert the
US public of this law change and of existing copyright law. There also needs
to be federal funding allocated to do this needed outreach.
10) Most importantly the very real problem that works will
be classified as orphaned works when in fact they are not orphaned.