Copyright at Risk?

If you thought our IP was at risk inside SL, has anyone heard of the Orphan Works Bill? This sounds like a nightmare....



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

That link makes the "Orphaned Works" bills sound very scary. It's not.

Because of the unprecendented extensions of and expansions of copyright protection during the 20th century, vast amounts of creative work exist that are protected by copyright. From 1790 to 1909 copyrights in the US were for 14 years, and could be renewed for another 14 years, for a total of 28 years. But now the pendulum has swung too far in the other direction:


The end result is that pretty much everything that has been created after 1922, is covered under copyright, and will be for decades to come. However, much of that work can't be licensed because the copyright owner(s) are often impossible to find.

The Orphaned Works bill provides a new defense against infringement, allowing people to republish/make derivitive works from works in copyright--if they have "performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but was unable to locate the owner" and requires anyone making use of the work to provide "attribution, in a manner reasonable under the circumstances, to the author and owner of the copyright, if known with a reasonable degree of certainty based on information obtained in performing the reasonably diligent search."

If the owner later shows up, he or she does not loose rights to their copyrighted work, and may require the infringer to make reasonable compensation for the use of the infringed work, or cease using it.

Read the proposed law for yourself:
http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5439:

And take a look at what the Library of Congress has to say about the real problem of Orphaned Works:
http://www.copyright.gov/orphan/orphan-report.pdf

Allison,

I have nothing against the original intent of this legislation. Unfortunately, as is so often the case with politics, the result may cause more problems than it solves. The Orphan Works Act was proposed to allow libraries the right to make copies of deteriorating materials that they acquired legally, but for which there is no longer a valid copyright holder available to grant permission for duplication.

It could also have a positive impact in the area of music publishing. According to BMI, of which I am a member, numerous compositions have become "orphaned" as a result of large publishing companies buying small companies and allowing some of the published works to languish. Although this is quite different from the circumstances faced by libraries, BMI claims that the law could result in the availability of music that would otherwise remain unavailable.

However, lawmakers who focus solely on the original intent and other positive results will overlook the serious ramifications of the way the proposed law could be used and misused. The legislation has failed in the past and I hope will continue to fail unless it can be written in such a way as to protect creative rights.

Wow. Thanks for sharing the link, Allison.

Carl, I do not share your optimistic appraisal of the consequences this bill would have were it to become law. Quite frankly, it's one of the scariest things I've ever seen.

If a law like this ever passes, it makes me want to decline all commercial gigs, go back to traditional oil and acrylic media, lock my portfolio in a bank vault, burn my sketch books, and just do private commissions for legitimate art collectors.

Wow. That's completely insane. Thank you for posting the link. I had never heard about this and it's something I will definitely be writing my representatives about!

It will have to wait
I dislike very much to have my audio taken over without choice.

wow, this is major news. I'll have to look up a lot more stuff to see if the threat is real. Thanks for the link!

What implications do you see?

I'm sorta split on all this.

Mickey Mouse, for instance, is an oooold copyright, but being used profitably to this day... should just anyone and everyone take that away one sunny day when copyright expires? (regardless of how nice or otherwise the corporation is?)

On the other hand, if someone died in 1953, his alcoholic son vanished into the arctic wilderness in 1957 mumbling something about aliens and the last vinyl recording he ever made is melting... c'mon... time to just copy it y'know?

Only problem I see is that whatever gets into the hands of politicians always gets twisted horribly into something it shouldn't be.

I agree completely.

You wouldn't be split on it if you were an artist.

Basically what this would do is strip rights away from individual artists and make them beholden to corporations. Copyright protections would no longer be automatic. All works would have to be registered with private sector registrars for a fee in order to be able to make any claims against infringement, even to be able to issue a cease and desist. That means just to have any basic rights as an individual artist you'd have to pay for it, to private corporations, for every work, even works already registered with the copyright office. Every existing work would be automatically orphaned until you ponied up the fees to the private registries. Depending on the fees involved that would likely be impossible for most artists. Under current law you can only seek statutory damages on works filed with the copyright office, otherwise you can only get the infringer to stop the infringement. Under this new law you wouldn't even be able to do that from the sounds of it.

To make matters worse, anyone who decides they'd like to steal a piece of your work to use for their own profit would only have to show that they made a reasonable attempt to find the copyright holder before assuming that the copyright is orphaned. If there are dozens, hundreds, or even thousands of private registrars it would be ridiculously easy for anyone to say that they made a reasonable attempt by checking the databases of a handful of them. Would artists have to pay all of them to prevent that? Who could afford that as an individual without having to sell your soul to some kind of clearing house?

Everyone likes to point out the evils of Disney and how copyrights extend for unreasonable periods (which is true), but this new law doesn't address that. It makes it much worse. It would cripple the rights of individuals while not being much of a burden to Disney-like corporations with deep pockets and armies of lawyers, researchers, and investigators. The likely result would be that in order to have any protection at all, artists would end up having to work through stock libraries and similar entities who would have the resources to protect the works of the artists they "manage" and in the process would end up being the ones who make most of the profits from creative works.

This is all based on that interview, and I haven't read the actual legislation so I hope this will turn out not as bad as it sounds, but I doubt it. This isn't about curbing corporate greed. It's about enabling more of it at the expense of individuals while making it sound like it's all about the public good.

If you haven't done so you should really listen to that interview in its entirety. It's chilling.

As a side note, I wasn't a big fan of Google before, but now I think they're downright evil.

Definitely something I'm going to be keeping an eye on.

Hopefully if it turns out that scary, there will be a protest much like the Internet Radio protests last year...

Copyright laws are going to be a real challenge in the future if outside grids ever end up being connected to the main grid. There are differences between European and American copyright law for example. This could very lead to a scenario where material that is still restricted by copyright law in America is not in Europe.

Would that mean you could use the item in the European grid but bringing said item into the main grid (which is American) would breach copyright laws? Or maybe it will depend upon your locality as to which law applies. American users couldn't use the items full stop but Europeans could, there would still be the issue of the locality of the grids as an American based grid would surely need to follow American laws, but in terms of the hook up, I wonder how those laws would apply.

Concerns have been raised over issues such as this with regards to P2P file sharing. European and Canadian laws protect some items for 50 years as opposed to 95 years in America, which implies Europeans and Canadians aren't breaking the law by sharing such material as it's no longer copyright protected but put an American into that equation and it's a whole different kettle of fish.

Huh? I didn't listen to the MP3 interview from the OP's link but i did read the PDF article. It was long on hysterical fearmongering and almost devoid of facts so i went and read the actual proposed law itself

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5439:

Unless i've really missed something, it doesn't say any of these things.

H.R. 5439 doesn't change copyright holders rights. Works are still automatically copyrighted when created and they retain all the same rights they have had. All this act does is allow use of copyrighted works when the copyright holder can no longer be found.

The confusion may come in because of the language in section 2C that uses the term 'The Register of Copyrights'. But this section has nothing to do with registration of copyrighted works. It just says that the U.S. copyright office gets to decide what constitutes a due diligence search and make that information available to the public.


Don't listen to the interview. Read the actual proposed law. I am a with Carl on this one; his analysis is spot on. This is not a scary piece of legislation it is a positive reform and long overdue.

The proposed legislation from 2006 isn't current. See http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00263 for a good synoposis of the third party registers and the problems they would cause.

According to the article cited in the OP, that's true. I question its validity.

Nevertheless, I'm against the legislation as it is currently written. It needs to be rewritten, again, to address the legitimate needs of libraries and other similar organizations without recklessly endangering the rights of creators.

I read the above and also the PicScout congressional testimony. The Illustrator Partnership article was fact-free hysteria. They don't even cite the bill they are upset about. The PicScout testimony boiled down to 'you have a problem. we have a solution we'd like to sell you'.

From what i can find, the 2006 bill is the only bill relating to copyright orphans. It seems that congress is having hearings about reintroducing the 2006 bill and PicScout was one of the companies to testify before congress. But i have not found any currently pending bill.

I agree with you. A federally mandated, privately run pay-for-play copyright registry would be a horrible idea, but HR 5439 doesn't do that. I am always in favor of letting your congresscritters know how you feel about things, But until and if the bill is reintroduced in some terribly mangled way, copyright holders have nothing to fear.

Even if private registries don't come to pass I still see the 2006 bill as a major weakening of existing copyright protection. It allows someone to take a work and profit from it by claiming they made a reasonable search for the copyright holder. What constitutes "reasonable"? Under existing law all works have a copyright unless they've gone into the public domain 70 years after the death of the author. No one can just assume that a work is orphaned. Even if the copyright isn't being actively defended, it still exists, and it still protects the work from infringement. The new law would essentially remove that protection.

Instead of assuming a work is protected even if the author can't be found easily, the assumption would be that the work is orphaned on that same basis - that the author can't be easily located. That places to burden on the artist to make sure they can be easily connected to every work they've ever produced that may be floating around out there without attribution. Enter private registries to the rescue... for a fee.

That's a huge shift. The 2006 proposal is hardly benign, and I think the argument that it's intent is to protect libraries and similar useage is a red herring. They're already protected under existing fair use provisions.

According to the American Library Association, the College Art Association, and other organizations concerned with the need to legally duplicate orphaned works, the fair use provisions do not allow for that.

Okay, now I'm confused thoroughly.

The above sentence is copyright Desmond Shang, 12 Apr 2008, all rights reserved in the United States of America. Or on the internet somewhere.

I am willing to pay three cents to a copyright registry, should one ever come to pass, to retain control over those words, and you may quote me on that.

Wait, no, don't quote me... at least not without fully referencing the source and in a noncommercial, noncompetitive context...

Even if that's the case, this law goes about solving it the wrong way, and even if the intent of the legislation is meant only rectify that situation, it could have devastating unintended consequences.

One of the examples cited in the interview was a very good one. Let's say an artist did some contract work for a company and as part of the job they submitted many designs for consideration, Those designs sit in a drawer for several years, then someone comes across them and says "hey, I really like this. We should use it for X." The problem is that the sketch has become separated from any paperwork connecting it to the artist who created it. Under existing law, unless they could produce a contract signed by the artist that gave ownership of the copyright to the client, they couldn't legally use it without tracking down the artist and renegotiating. If they couldn't do that then they'd have to assume that they didn't have a legal right to use the design.

Under the new law all they'd have to do is demonstrate that they made a reasonable attempt to find the artist (and again, what constitutes "reasonable"?), and failing to find them they'd be free to use that design any way they pleased, without compensation to the original designer. They could make a derivative work and license it to other people for profit, and unless the artist discovered it (because now he's responsible for policing the entire world for infringing works due to the ease with which something could be considered orphaned), they'd be perfectly within their legal rights to appropriate the copyright for profit. Even if they get caught eventually, the artist can't really do anything about it. They'd be entitled to "reasonable compensation" but if they didn't agree that the compensation is reasonable, they'd have to go to a federal court to seek a remedy.

In short, this would change the law from saying that everything should be assumed protected by copyright unless the person who wants to use it can prove otherwise, to the assumption that everything is orphaned unless the author finds out about it and can prove otherwise. That's my take on it anyway, and it strikes me as a horrendously bad idea.

I agree with you completely. That's why I've been against the legislation, despite realizing there is a need to solve problems with orphaned works. It would be misused as much, if not more, than the fair use provisions have.

As the interview points out, a good way of addressing this concern is by empowering a board to investigate and declare orphaned works on a case by case basis. Hell, the organizations mentioned here would be good places to start in forming such a board. Certainly, the number of unattributed pieces that museums want to use in promotional materials is far far less than the amount of creative work done generally, and thus such a process is feasible.

Listen to the interview. It's actually much better than the article.